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Marijuana legalization is a hot topic across the United States, with enactment of both recreational and medical marijuana laws taking place at a rapid pace. Consequently, employers face the daunting task of not only staying abreast of the quick-changing landscape of marijuana laws, but also determining how to handle the myriad of issues that marijuana legalization presents to their workforces—including compliance with the marijuana statutes themselves, underlying disability issues with medical marijuana, safety concerns, and the interplay between marijuana and drug testing. Combine these issues with the difficulty employers face in recruiting and retaining employees, and it amounts to an increasingly complex challenge. This article will address ten challenges employers may confront when dealing with marijuana legalization laws.

  1. Recruitment and Retention

Marijuana has seemingly become less and less controversial and, as unemployment continues to reach historic lows, the ability to attract talent may be difficult for many employers. Blanket prohibitions against marijuana use, whether recreational or medical, often conflict with the goal of “filling a workforce” and may eliminate a large population of potential employees. Thus, many employers are grappling with the threshold question of whether to test for marijuana at all, especially when it comes to pre-employment testing, and whether to prohibit marijuana use in their workforce. Anecdotally, the trend appears to be moving away from pre-employment testing for marijuana, especially for employers who are not federal contractors or governed by federal regulations (e.g., Department of Transportation regulations), or employers who do not have safety-sensitive job positions. While pre-employment testing for marijuana is largely a business decision, employers should continue to maintain post-employment testing such as for reasonable suspicion.

  1. Compliance with Medical Marijuana Laws and Anti-Discrimination Provisions

Currently, Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, and West Virginia offer certain employment protections for authorized medical marijuana card holders with some exceptions. In most of these states, merely possessing a medical marijuana card, or testing positive for marijuana use, is not alone a sufficient cause for an adverse action against an applicant or employee. Generally, the employer must demonstrate that the employee used, possessed, or was impaired by the drug at work. Thus, an employee’s lawful use of marijuana outside of the workplace is protected.

In several of these state laws, safety-sensitive positions are carved out of the statute. Employers may lawfully refuse to hire applicants for safety-sensitive jobs or exclude, discipline, or discharge employees who work in safety-sensitive jobs if they use or test positive for marijuana, even if they have a valid medical marijuana license. Even in states that do not have express carve-outs for safety-sensitive positions, there still may be legitimate business reasons for excluding the individual from the position. However, employers should do a careful analysis,

engage in the interactive process, and document the reasons for its decisions before taking an adverse action.

  1. Compliance with Disability Discrimination Laws

Employers must not only comply with the express language of marijuana statutes (such as anti- discrimination provisions), but also be mindful of a parallel concern with medical marijuana users: the underlying medical condition giving rise to the marijuana use. Presumably, if an individual is a medical marijuana cardholder, he or she has some type of medical condition that would likely constitute a “disability.” Examples may include Crohn’s disease, debilitating pain, epilepsy, or mental health disorders. Thus, if an employer is on notice of an individual’s medical marijuana use, then the employer should also consider itself to be on notice of an underlying medical condition (even if the exact condition is unknown). Since 2017, plaintiffs asserting state law disability discrimination claims have successfully advanced beyond rule 12(b) motions to dismiss in Massachusetts, New Jersey, District of Columbia, and Rhode Island. In these cases, plaintiffs have generally followed a simple road map: (1) plaintiff has an underlying medical condition and uses medical marijuana as treatment, (2) defendant takes adverse employment action because of a failed drug test indicating marijuana use, (3) plaintiff alleges that defendant regarded him/her as disabled under state disability discrimination laws, and (4) plaintiff alleges that defendant discriminated against him/her by taking adverse employment action and/or by failing to accommodate the disability. Note that plaintiffs have yet to succeed in pursuing disability discrimination claims under the federal Americans with Disabilities Act (ADA).

  1. Multi-State Compliance

As the above points indicate, compliance with marijuana legalization laws is increasingly difficult because of the fundamental differences in these laws on a state-by-state basis. For example, an employer with operations in Maine, Pennsylvania, Florida, and Georgia must comply with four different legal frameworks: (1) statutory protections for recreational and medical marijuana (Maine), (2) statutory protection for medical marijuana (Pennsylvania), (3) no statutory protection for medical marijuana (Florida), and (4) no marijuana laws at all (Georgia). Therefore, employers who want to develop and implement “one-size fits all” policies or practices are faced with a difficult dilemma. While multi-state employers are used to dealing with state- specific employment laws in other areas (e.g., wage and hour laws or leave laws), the emergence of marijuana legalization laws that differ so greatly from state to state has created a challenging patchwork of laws with which employers must comply.

  1. Impact on Drug Testing

While testing for marijuana use in the workplace may be permissible, we do not yet have a reliable testing method to detect if someone is impaired by marijuana in the workplace.

Currently, urine, saliva, blood, and hair testing can show the presence of marijuana, but these tests cannot establish whether an individual was impaired at the time of the test. For instance, a urine drug test can detect marijuana as soon as 2 to 5 hours after use. However, the length of time marijuana is detected in urine depends on the amount used, its potency, frequency of use and the user’s weight and body fat. The more frequent the use, the longer it will stay in the user’s

system. For an infrequent user, marijuana could stay in the user’s system up to two weeks, and for someone who only smoked marijuana once, it may be out of their system in less than a week. Although we do not currently have an effective marijuana impairment test, help may be on the way. Several companies are developing and testing marijuana impairment tests. For example, in Scottsdale, Arizona, Zxerex, a spin off from Arizona State University and Barrow Neurological Institute, has developed a non-invasive screening test that identifies impairment related to marijuana. Once new technologies, such as this, become available and accepted as reliable testing methods, employers will have more options for dealing with employees who are legally using marijuana. Employers will be able to focus on whether the employee is “fit for duty” versus whether they use legally marijuana when they are off-the-clock.

  1. Federal Law and Federal Contractors

For years, the popular attitude towards marijuana was “it is still illegal under federal law.” While that is certainly still a true statement, many state courts have not reacted kindly to this explanation in construing state marijuana legalization laws—and employers should be prepared to defend their actions in state courts without this argument. However, employers who are federal contractors or who have employees covered by Department of Transportation (DOT) regulations should be aware that marijuana’s classification as a Schedule I drug under the Controlled Substances Act is still relevant. Even the marijuana legalization laws that contain

anti-discrimination provisions also include exceptions for employers who are subject to federal regulatory oversight (such as the DOT’s requirement for marijuana testing), or employers who could lose federal funding if the employer violates federal law (such as certain federal/government contractors). Thus, employers who fall within these exceptions should continue to comply with federal requirements. However, it is a common misperception that merely being a federal government contractor exempts an employer from state marijuana laws. The federal Drug Free Workplace Act (DFWA), which applies to certain federal contractors and grant recipients, does not require drug testing, nor does it require employers to terminate employees for a positive drug test. State marijuana laws with anti-discrimination provisions also prohibit marijuana use or possession or being under the influence of marijuana in the workplace, and thus, compliance with these laws should not violate the DFWA. Unless the federal contractor is required to drug test by federal regulation or by the terms of its specific contract or grant, the contractor most likely will not be at risk to lose federal funding.

  1. Safety Concerns

When it comes to marijuana, employers’ number one concern is safety in the workplace. Although there are medical benefits associated with the use of medical marijuana, there are also many negative side effects. Some documented negative effects include changes in sensory perception, short-term memory problems, impaired thinking and learning, impaired motor performance, loss of balance and coordination, decreased attentiveness and alertness, prolonged response time to stimuli and danger, decreased ability to judge distance and space, and impaired ability to perform complex tasks. According to a study reported by the National Institute on Drug Abuse, employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries, and 75% greater absenteeism compared to those who tested negative.

As more states provide job protection for marijuana users and employers find it harder to recruit and retain talent, employers need to decide whether to test and who to test. Employers should

look at the applicant’s or employee’s job functions to determine whether drug testing is necessary. Many employers have removed marijuana from their pre-employment drug testing panel all together or have limited pre-employment marijuana testing to safety-sensitive positions.

Employers should be proactive in creating a culture of safety in the workplace. Increased training of managers on identifying the signs of impairment is important. In addition, employers should have clear policies on marijuana use, possession, and impairment in the workplace. Employers should also create a culture where employees can come forward, without fear of reprisal, and request assistance from the employer’s employee assistance program to treat issues of addiction and drug abuse.

  1. Supervisor Training

Despite the increased tolerance for marijuana, even the most vocal of marijuana supporters likely agree that impairment in the workplace is unacceptable. This concept is reflected in marijuana legalization laws, which generally state that on-site use, possession, impairment, or intoxication is not allowed—even where marijuana users otherwise receive statutory protections.

Unfortunately, marijuana is not the same as alcohol, where a positive test indicates recent use and current intoxication. If someone tests positive for marijuana, it is unknown whether that individual used marijuana minutes, hours, days, or weeks ago. In addition, impairment due to marijuana may be difficult to spot. Therefore, it is vital that employers train their supervisors and managers on how to spot impairment, and how to properly document impairment if observed. If there is evidence that an individual is impaired at work and subsequently tests positive for marijuana on a reasonable suspicion drug test, an employer will be able to argue that an individual was impaired at work and such impairment is supported by documentation, observation, and a positive drug test.

  1. Cannabidiol (CBD) Oil and Other Low-THC Products

CBD is one of many compounds found in cannabis. While CBD is a cannabinoid, it does not produce the “high” one gets with THC, which is the psychoactive ingredient found in marijuana. Although there is limited scientific research regarding the use of CBD or other low-THC products for medicinal purposes, there are some preliminary studies that indicate that CBD may have medical benefits.

Because CBD does not produce a high, CBD should not cause impairment for the user. However, CBD products are not regulated by the FDA, and employees may not know exactly what compounds are in their CBD product. A common scenario for employers is when an employee tests positive for marijuana and claims he or she was legally using an over-the-counter CBD product. The use of CBD should not result in a positive test for marijuana or its metabolites, but because these products are not regulated, the product may contain other compounds with a sufficiently high THC concentration to trigger a positive marijuana test. In this situation, the employer may not definitively know whether the positive result was triggered by a CBD product, which contains THC, or marijuana use. In these situations, employers will generally treat the

positive test just as it would a positive test for marijuana. However, this analysis is complicated when the employee is legally authorized to use medical marijuana, CBD, or low-THC products under state law. In this situation, the employer should proceed with caution before taking action against an applicant or employee who claims to use marijuana or CBD oil for medicinal purposes.

  1. Development of Drug Testing Policies and Procedures

With marijuana laws changing rapidly, employers should review and update policies to ensure compliance with relevant state laws. In states that provide job protections for medical marijuana users and in those that provide protections under state disability laws, employers should confirm that their drug policies and procedures do not require automatic termination for a positive marijuana test. Employers should have processes in place for engaging in the interactive process in these states.

In addition, employers operating in states with legalized marijuana may want to review their policies and determine if they want to limit mandatory pre-employment drug tests or marijuana testing to employees in, or applicants for, safety-sensitive positions. For employers in New York City, there is a new law prohibiting pre-employment testing for marijuana, and in Nevada, a new law will prohibit employers from withholding a job offer because a candidate tests positive for marijuana use. Both laws provide exceptions for applicants in certain safety-sensitive positions or where employers are required to test pursuant to federal law, contract, or grant. Employers in these jurisdictions may want to review their pre-employment drug testing policies, consider positions that may be exempt from the laws, and prepare to modify policies and procedures to ensure compliance with these laws once enacted in 2020.

Employers should consider policies that make it clear that the use or possession of, or being impaired by, medical or recreational marijuana while working or on company premises is prohibited. Employers do not want to lose good employees because the employees did know that their legal use of marijuana could lead to the termination of their employment.

Region: United States
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.