Sixty-two percent of America’s states and the District of Columbia, Puerto Rico and Guam have legalized medical marijuana use, and the number of people using marijuana in the United States is rising rapidly. As a Schedule I narcotic under the federal Controlled Substances Act, marijuana is still illegal, but its widespread use by workers and potential employees poses significant legal and practical issues for employers.
In addition to increased use and acceptance of marijuana, the drug is now more potent (almost double the active ingredient THC, or tetrahydrocannabinol) and has greater impact, lasting a longer time. No reliable metric is available for determining when a particular level of THC impairs the user and for how long, but studies show that it stays in the body much longer than alcohol; the duration of impairment could be more than 24 hours.
Recycling companies have always made safety a priority. With marijuana legalization, they face new concerns: how employees’ occasional or regular use of marijuana impacts the workplace and whether the effects are linked to job accidents and injuries. Short-term effects of THC can include impaired body movement, difficulty thinking and problem-solving, memory issues and an altered sense of time, all of which could be detrimental to workplace safety.
The legal landscape is hard to define because most states are still defining regulations regarding marijuana sales, production and use. In states where the consumption of cannabis is legal, the courts’ opinion of applicable employment law and the responsibilities of employers related to employees’ marijuana use vary greatly. For recycling company owners and managers, it is a confusing landscape indeed, but one that cannot be ignored.
Previously, the courts typically agreed with employers that didn’t want to hire marijuana users, citing that it was illegal under federal law. As of late October 2018, nine states specifically ban employment discrimination against medical pot users. Other state courts have ruled that employers may take action against an employee who has tested positive under the employers’ substance abuse policy. However, in three states, a positive drug test alone does not indicate impairment and cannot be used as the sole reason for disciplinary action.
While companies may use the federal Drug-Free Workplace Act (DFWA) as guidance for pre- and postemployment drug testing, DFWA does not require employers to conduct drug testing or to fire employees who test positive for marijuana. DFWA doesn’t provide meaningful guidance on medical marijuana use, and clarity is lacking around the use of drug test results.
To further the confusion, the U.S. Department of Justice allows states to enforce narcotics laws that are considered “outside federal priorities.” This allows states to enforce marijuana laws as they wish. While the drug is not considered for accommodation under the federal Americans with Disabilities Act, controversy surrounds the issue of accommodation for employees who are prescribed medical marijuana.
Because of the variances among the states and few standards for enforcement, recycling companies in states with medical marijuana laws should be familiar with protections for employees and potential hires.
Whether to drug test
Recycling companies that regularly use drug testing services are likely reporting higher numbers of positive tests for marijuana in pre- and postemployment drug screens.
State laws legalizing marijuana do not completely protect employees who are under the influence while at work. The type of work being performed is an important factor. Equally important are state laws that affect how and when drug tests are conducted, the use of the test to determine impairment and the actions an employer can take.
Owners and managers should consider these questions when determining their drug testing policies:
What is state employment law concerning current and potential employees who have a medical marijuana prescription? You do not want to have the appearance of discrimination by denying a job to someone who may be protected in states that have legalized marijuana. However, because legislation regarding employer policies varies from state to state, there is no one-size-fits-all rule. Company owners, managers and HR staff must be aware of changes to employment law.
Are your company’s jobs safety-sensitive? Are positions federally regulated? If your business uses truck drivers who are regulated by the U.S. Department of Transportation, you are likely required to test for all illegal drugs. If the job requires working around balers or shredders or operating mobile material handling equipment, it would be in your best interest to test for impairment, even if marijuana is legal within the state.
Do you want to continue to perform drug tests? Recently, employers have moved to exclude marijuana from mandatory drug testing because of the lack of clear guidelines on what constitutes impairment and tight applicant pools. Employers should determine if jobs require drug testing. Companies should review their procedures and determine which approach is best under their states’ laws.
Has your substance abuse policy been reviewed to ensure it is still appropriate for your business and employment situation? State laws legalizing marijuana use do not require employers to compromise workplace safety. Employers should make sure their policies reflect the steps that need to be taken to meet their obligations to consider employee rights while guarding workplace safety. Your guidelines, stated in the employee handbook and in the company’s substance abuse policy, will help employees and supervisors understand that state law might not protect them from consequences of being impaired on the job.