Marijuana and the Workplace

How have employers responded to marijuana legalization?

FEGELY: Employers hate it. They despise any legalization of marijuana. Some more progressive employers are OK with it, but many are still in the mindset that if an employee is using marijuana they will be lazy and late. They generally don’t want to employ anyone they know is using marijuana. I’ve had employers tell me that they don’t want to hire anyone who has a medical marijuana card. But just because someone has a card doesn’t mean they are regularly using it.

At some companies that have less-skilled positions like factory workers, if they have a job post that says potential employees have to do a drug test, they get fewer people applying for jobs. Some foundries have just stopped preemployment drug testing. There is no requirement for employers to drug test, and many don’t want to know if a person is going to test positive. A lot of employers think it makes their lives more difficult when finding job applicants, especially when recreational use is legal.

LAMBERT: When medical marijuana was legalized, there were two camps. Folks who said, “We don’t care what the law says, we don’t want it in our workplace based on principle.” And they definitely needed to run that by their employment counsel to see what their risk was [for a lawsuit] in taking that position. The other camp was people who were just throwing up their hands and not bothering with [preemployment] drug testing anymore. And that might seem like a reasonable solution since the duration that it shows up is weeks to months depending on someone’s body composition, metabolism, and method and frequency of consumption.

Marijuana tests detect if someone has used the drug within about a month. This makes it hard to know when someone has used it, for instance, and it might have caused a workplace accident. How are employers dealing with that?

FEGELY: Almost all states, even those where recreational use is legal, still allow employers to have reasonable suspicion and post-accident testing. If I come in with red eyes, I’m not being productive, and I smell like marijuana, and I am sent by human resources to get tested and test positive, my employer can still make an adverse employment decision because it would be based on reasonable suspicion.

All of this is relatively new, and the case law is so sparse and limited. That’s because no employer wants to be the test case to find out what the limits [of state regulations] are or be the one that loses. This all makes it harder for employers to decide what to do. We typically work with employers, but we sometimes have employees who call us looking for advice. There is a big misconception that they can’t be terminated when it is legal in a state. But it depends on the position and whether they were using it at work.

Another interesting thing we have seen in some cases is when a medical marijuana user gets transferred from a safety position to a different position that’s not safety-sensitive. Someone brings a disability claim, saying they were moved or transferred because of their disability after they tested positive for marijuana. But it’s important to note that the ADA [Americans with Disabilities Act] does not protect individuals who use marijuana. It doesn’t consider that a disability because there’s a specific carve-out that references the Controlled Substances Act in it. Individuals using illegal drugs—as defined by the Controlled Substances Act—are not considered qualified individuals with a disability. So, until Congress removes marijuana from the Schedule I list of drugs, people using medical marijuana don’t get any protections under the ADA.

Generally, if there is an accident and the employee tests positive, that’s enough for an employer to suspend or terminate them. They can say they haven’t smoked in 30 days, but if it’s still in their system, that’s all the proof an employer usually needs to combat a discrimination claim. Employers just need to know what their specific state law allows them to do, so they are in a better position from a legal standpoint. And if they have an experienced employment attorney, always consult with them before taking any adverse action.

Do employers face different challenges in states where marijuana is legal medically versus where it’s also legal recreationally?

LAMBERT: When marijuana legalization comes to a state, it’s almost always medical first and then recreational is passed. Some data has shown that the frequency and severity of workplace accidents were lower when medical is passed and then spike when recreational use becomes legal. The hypothesis is that medical use is a limited program and an alienable right. In some states it’s really hard to get a medical card and in others, like Missouri, it’s really easy to get and marijuana is really accessible. When people have to get a medical card, the reality was, if they were abusing it, they could lose the card. Some people, seemingly, had to be more well-behaved because they didn’t want to lose access. And the type of people who go through the process to get a card lean toward some aspect of rule following.

When recreational use is legalized, it’s a totally different audience that is using. And I think that’s where you see people who are using it more frequently. I get calls from employers who say the staff think that because it’s legal, they can go smoke in their car at lunch because they are off the property and then come back to work. Employers have to tell them they aren’t supposed to be impaired on the job because they need a coherent workforce that is clearheaded and working productively.

How can employers protect their workplace from on-the-job marijuana use?

LAMBERT: Having a drug-free environment is really about culture, and it starts with a good drug-free workplace policy and education. If you don’t have a drug policy, you don’t have a lot to stand on if something happens; it could also be viewed as being permissive of marijuana use. Just the existence of a preemployment drug test is an obstacle for problematic users, so if you don’t have one, you are setting yourself up to attract those kinds of employees. But you can’t just have a policy and put it in a closet somewhere and expect to impact behavior. It doesn’t cost much to create a policy, do training on it, and have people sign it. Everyone should have that. The next steps would be preemployment testing, random testing, and suspicion-based testing.

Many companies, like us, that are safety-focused, provide sample drug-free workplace policies for our clients. And if clients are going to reduce risk through using drug policies and preemptive testing, they can earn discounts on their insurance premiums. There are real dollars to be saved, and it’s not just through having fewer claims.

How has legalization changed workers compensation?

LAMBERT: It used to be that, if someone had a positive test for THC and it was presumed to have been the cause of an injury, it could result in the reduction or forfeit of workers compensation benefits. Now, testing is the first step in a line of inquiry. Workers in states where medical marijuana is legal and the employees have constitutional protections, like Missouri, employers need something in addition to a test.

Employers now need to show the employee was impaired at the time of the accident. These are subjective observations—a supervisor or other employee saw them behaving differently, they had a smell, or seemed impaired. But some supervisors don’t feel comfortable with that. So, if a company is in an industry where there is a prevalence of use and [the industry] has workplace safety issues—like roofing, contracting, or transportation—we recommend sending supervisors for training to help make determinations if people are impaired. There are companies that do that like Tomo Drug Testing.

How do these laws affect companies that operate in multiple states or have people working remotely in different states?

FEGELY: It is trickier for employers that are in situations like that. But what matters is where the employee is performing their work. Say I’m based in Kansas, where use of marijuana is illegal, but I have an employee who works in Colorado, where it’s legal, it’s the Colorado law that applies.

One caveat is if the person is in a safety-sensitive position—they use forklifts or heavy machinery, or their work can affect the health and safety of others or put themselves in danger. The safety sensitivity of the job overcomes any state protection they might have, even if they have a medical card.

What should employers know about these laws moving forward?

LAMBERT: I would tell employers to stay tuned. There is a lot of gray area in the law about how things are supposed to work, and that is clarified in litigation. In Missouri, we don’t have a lot of court rulings yet. We represent a lot of small employers that don’t have lawyers on retainer, and they can sign up for industry resources and cannabis organization sites (because those sites are plugged into what is happening in the states) and stay abreast of developments.

There is a risk determination each employer needs to make, and we are trying to point them toward looking at the issue purely in the form of workplace safety and productivity. If they have a transportation company with people who have CDLs [commercial driver’s licenses], they have to follow federal laws. Other companies need to look more at their risk tolerance, what the job market will bear, and make sure people know they can’t be impaired in the workplace.