UTICA NATIONAL RISK MANAGEMENT ALERT
The advent of legalized marijuana has created a complicated legal landscape for employers. Many states and
Washington, D.C have laws broadly legalizing marijuana in some form. Several of those states and Washington,
DC have laws legalizing marijuana for recreational use with others considering legalization in the near future.
Although many states have legalized marijuana use, it is still illegal under federal law. If you are a federal employer or work on federal contract, you are required to have a drug free workplace policy, regardless of state law. Additionally, the interplay between the state law where marijuana use is legal and federal law has not been wholly clarified.
How do you respond to questions about medical marijuana use?
As with other legal medications, some employees may rely on medical marijuana for pain management, anxiety,
and other afflictions.
Work with your employees, and their medical providers, to identify any accommodations they may require. While it is important to respect the employee’s right to privacy, employers have a legitimate interest in ensuring that marijuana and any prescribed medications are used responsibly and in a way that will not affect job performance or safety.
If an employee is legally prescribed medicinal marijuana, you will need to evaluate his or her job functions/tasks to determine if medicinal use will adversely impact his or her job performance. Evaluation of safety-sensitive positions is critically important. Safety-sensitive jobs include driving a motor vehicle, operating heavy equipment, or other machinery and equipment.
State laws vary regarding accommodation, so consult with your Human Resources professionals and legal counsel to clarify accommodation requirements.
How do you respond to questions regarding recreational use of marijuana?
Although several states allow for recreational use of marijuana, that does not imply that being under the influence at work is permitted. Employers have the absolute right to prohibit use at work, for the safety of all employees. However, employers will need to review and modify their drug policies, as you are likely to encounter positive drug test results in states with legal marijuana use.
Some states have put in civil rights provisions in their laws saying you cannot exclude a person from employment should they test positive for marijuana use. You will need to have policies in place to address positive tests in states where marijuana use is legal.
One possible approach is to model your marijuana use policies after your alcohol use policies. Your policy would then be directed at prohibiting employees from being under the influence at work, rather than what they do on their own time.
Additionally, employers should be very clear what the consequences are for being under the influence during working hours and employees must be trained on these policies.
Consult with your Human Resources professionals and legal counsel to define policies related to recreational marijuana use.
How do I determine if an employee is under the influence of marijuana?
Currently, there is no “real-time” way to test if an employee is impaired by marijuana like there is for alcohol impairment.
Urine tests for marijuana can test positive if there has been any use within the previous five to 21 days, but they cannot tell you if the user is currently impaired.
Train supervisory personnel to recognize the signs of impairment. If you suspect an employee is impaired, follow your company policies and document your findings.
State laws vary widely in terms of the allowable employment actions associated with an employee’s use of marijuana.
Issues such as accommodation, discrimination, and retaliation need to be carefully evaluated as they apply to employee use of medical/recreational marijuana.
To effectively address marijuana use in the workforce:
- Employers should educate themselves on the laws in effect in their state.
- Approach employee requests for accommodation in a compassionate, respectful manner.
- Work closely with your Human Resources department and legal counsel to determine how best
to address this complex issue.
Resources:
5-R-1287 | Ed. 02-2020
This information is provided solely as an insurance risk management tool. It is provided with the understanding that the member insurance companies of the Utica National Insurance Group are not providing legal advice, or any other professional services or advice. Utica National shall have no liability to any person or entity with respect to any loss or damages alleged to have been caused, directly or indirectly, by the use of this information. You are encouraged to consult an attorney or other professional for advice on these issues.