Risky business

by Richard Alaniz
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For employers with operations in the 14 states that have legalized marijuana for medical purposes, it is a difficult task to juggle the need for a drug-free workplace environment and the rights of employees who have prescriptions to legally use marijuana. Consider the following: How does legalized use of marijuana impact companies that have random drug-testing policies? Can employees with a legal prescription to use marijuana claim they have a disability and are therefore entitled to a workplace accommodation?

Unfortunately for employers and employees, there are few hard and fast rules when it comes to legal medical marijuana usage in the workplace. The federal government steadfastly considers all forms of marijuana use to be illegal, and states have taken their own, often contrasting, approaches to employers’ and employees’ rights.

Even if all operations are confined to states where doctors cannot prescribe legal marijuana, that could change. According to the Marijuana Policy Project, 27 states considered medical marijuana legislation during the 2007 or 2008 legislative sessions. And, Arizona approved medical marijuana legislation at the end of 2010.

Conflicting messages and laws

Many employers have policies in place that include a zero-tolerance approach to drug use. Many also conduct drug testing before hiring and random drug testing for employees — tests that users of medical marijuana will fail.

Many employers have policies in place that include a zero-tolerance approach to drug use. Many also conduct drug testing before hiring and random drug testing for employees — tests that users of medical marijuana will fail.

All employers are required to provide a "safe and healthful" work environment under the Occupational Safety and Health Act of 1970. If employees are smoking pot, even off-duty, safety issues could arise. Employers must consider questions of liability. If an employee legally using marijuana hurts someone while on the job, the company could quickly find itself embroiled in a lawsuit.

The states’ differing approaches

In the jurisdictions that have legalized medical marijuana, patients are protected from arrest if they have a physician’s permission to use the drug and have completed any necessary forms. Beyond protecting users from criminal prosecution, the approaches to employees’ possession and use as well as employers’ rights and duties vary dramatically. Many of these laws are new or untested in court, and there is often very little specific guidance.

In the jurisdictions that have legalized medical marijuana, patients are protected from arrest if they have a physician’s permission to use the drug and have completed any necessary forms. Beyond protecting users from criminal prosecution, the approaches to employees’ possession and use as well as employers’ rights and duties vary dramatically. Many of these laws are new or untested in court, and there is often very little specific guidance.

What should employers do?

This is an opportunity to reconsider and review drug-testing policies. Do not approach the job alone. It’s important to involve HR staff and in-house and outside counsel. And make sure the company’s legal counsel has expertise on the specific state laws, since there are still many gray areas.

This is an opportunity to reconsider and review drug-testing policies. Do not approach the job alone. It’s important to involve HR staff and in-house and outside counsel. And make sure the company’s legal counsel has expertise on the specific state laws, since there are still many gray areas.

  • Re-evaluate current policies –Policies should be clear about the use of non-legal drugs –specifically outline the organization’s zero-tolerance approach to anyone who possesses or uses drugs or alcohol at work, or who shows up under the influence of any type of substance. The safety of workers, customers, and the general public should be of utmost importance. In a state where medical marijuana use is legal, specifically address the issue, even if the company policy is to ban employee use in the states where the legalization statute clearly gives employers that right.

  • Educate and explain – Training and education about the organization’s drug policy should be regular and ongoing. If questions arise, employees and supervisors should know who to direct questions to, so that any issues are dealt with quickly.

Job applicants should be made aware of the company’s policy, and in states where medical marijuana is legal, there should be processes in place for applicants who have the necessary forms and permissions to use marijuana. States vary in how they identify medical marijuana patients, so be sure those who are hiring understand what forms to look for.

The issue of medical marijuana is a complicated one, and it will remain so as long as state laws differ and clash with federal laws. Compliance depends on carefully considering and implementing policies.

Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston.

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