As many companies are finding, legislative pushes to legalize medical and recreational marijuana have important implications on your organization’s workplace health and safety. We rounded up the top questions asked during our Into the Weeds webinar, and answered them to give you further guidance on how to uphold best practices when it comes to employee use of marijuana.
Q: Colorado first legalized marijuana for medical purposes in 2000, with specific possession, use, and growth limits in place, then expanded legalization to include marijuana for recreational purposes in 2012. Is this same trend happening in other states? Do you expect recreational use to become legal in all 50 states in this decade?
A: As mentioned in the webinar, Colorado has a unique process that allows citizens to easily petition to amend the state’s constitution, which is a notable reason why Colorado was one of the first states to legalize marijuana for both medical and recreational purposes. The state has two separate sets of policies to govern the use of marijuana, with separate sections in the state constitution addressing medical and recreational marijuana separately.
Article XVIII Section 14 outlines the medical use of marijuana for those persons diagnosed with debilitating medical conditions, such as cancer, glaucoma, and HIV/AIDS. The state health agency oversees a confidential registry that lists patients who have applied for or received a registry identification card permitting them to obtain and use medical marijuana. Article XVIII Section 16 outlines the regulations for the recreational use of marijuana, which is controlled in a similar manner to alcohol. Only individuals who are 21 or over may purchase regulated recreational marijuana from legitimate businesses.
Out of the 29 states (plus D.C., the U.S. Virgin Islands, Guam, and Puerto Rico) that have legalized marijuana for medical use, only 6 states plus Washington D.C. have fully legalized both medical and recreational marijuana. It is likely that more states will legalize recreational marijuana due to the considerable tax revenues earned from the sale of marijuana.
Under federal law in the United States, marijuana is illegal. However, if an individual state passes a law that decriminalizes the use of marijuana for either medical or recreational purposes, this is allowed, so long as the state enacts a system to regulate the sale, use, and possession of marijuana. It is unlikely that the federal government will decriminalize marijuana because of the drug’s classification as a Schedule I substance, meaning that there is a high potential for abuse among users and a lack of acceptable uses in medicine.
Q: If an employee tests positive for marijuana, but has a medical marijuana card, are employers legally allowed to terminate the employee?
A: Legislation surrounding the legalization of marijuana becomes even more confusing when it comes to workplace zero tolerance policies. Though medical and recreational use of marijuana is legal under state legislature, employers are still allowed to enforce a zero tolerance drug and alcohol policy at work. A notable case where this has been tested was in Coats v. Dish Network, where the plaintiff, a quadriplegic who used medical marijuana to control muscle spasms, was fired for failing a drug test due to off-duty consumption. Consequently, the plaintiff sued for wrongful termination, and the suit was brought to the Colorado Supreme Court, where it would set a precedent for workplace drug policies. This case brought some much needed clarification to the state’s Lawful Off-Duty Activities Statute, which states that if employment is terminated due to lawful activities done outside of work hours while off work premises, this would be considered discriminatory. The Colorado Supreme Court ruled that off-duty use of medical marijuana is not protected under the statute because medical marijuana is not legal under federal law. It also clarifies that employers are able to set their own drug and alcohol use policies and may enforce a zero tolerance policy should they deem that necessary.
Q: As an employer, how can we enforce a zero tolerance drug policy while being mindful of employee health needs and state legislature?
A: As mentioned above in the case of Coats v. Dish Network, employers are able to enforce a zero tolerance drug and alcohol policy no matter the legality of drugs used while off-duty. When crafting your workplace’s drug policy, it is important to be clear when dictating company policy, particularly with regard to use of legal drugs. When hiring new employees, employment contracts could be conditional upon passing a drug test. If instituting this policy, this would have to be a mandatory requirement for all new hires. As well, if your company has and enforces a random drug test policy, it is important to make sure that testing genuinely is random. Problems would arise if an employee felt that a random drug test wasn’t actually random, and was thus discriminatory. Above all else, regular review of your company’s hiring practices and drug policies should be done to make sure that your processes are in compliance with state laws.
Q: What if our site is in a state that has not legalized marijuana, but an employee lives in a neighboring state that has legalized marijuana and an employee tests positive? How should we handle this?
A: Yet another point that remains unclear with regard to legal marijuana use is the matter of travel and transport across state lines. Interstate commerce is regulated by the federal government, which also classifies both medical and recreational marijuana as illegal. State legislature on the matter avoids federal overrule by specifying that the growth, use, and sale of legal marijuana is only done by those licensed by the state. This means that legal use of marijuana in one state is not technically legal use in another state, despite the fact that marijuana use may be legal in both. As outlined in the question above, company drug policy can still mandate that employees refrain from using drugs when off-duty, which includes out-of-state employees. If an employee that commutes from another state tests positive, the employer can treat this matter as they would treat a positive result from any employee.
Q: How should we, as employers, respond if an employee tests positive?
A: Every company drug policy is different, and thus, penalties for drug use vary accordingly. Regardless, it is important for a workplace drug policy to clearly outline the company’s position and should take the company’s industry into account. Disciplinary actions as outlined in company drug policy should apply to all violating employees, despite the employee’s position in the company. This ensures that discrimination claims can be avoided. For your company’s drug policy to be effective, it is important to make it readily available and accessible for employees to consult if needed. As well, it is beneficial to give information on how to seek out assistance if it is needed. Keeping employees safe is an employer’s utmost priority, and having a clearly defined workplace drug and alcohol policy is the best way to do so.
Q: What tools for field testing are available for levels of marijuana in the body? Are they similar to the tools used for testing alcohol levels in the blood?
A: While field testing for blood alcohol levels is relatively straightforward, field testing for levels of marijuana in the body is far more difficult. While driving under the influence of both alcohol and marijuana is illegal, it is relatively impossible to establish a legal limit for driving under the influence of marijuana. The effect of marijuana on an individual depends on a number of factors, such as body size, rate of consumption, metabolism speed, and more. Though similar factors also dictate the effects of alcohol on an individual, there is a greater variance when it comes to marijuana consumption. In the case of marijuana, it is difficult to determine when the drug was consumed because traces of marijuana can last in a user’s system for multiple days, even weeks. No handheld field test has been developed yet to test for marijuana impairment. However, other field sobriety tests used to test for alcohol are often used for marijuana. Some of these field tests include the horizontal gaze nystagmus test (following an object, such as a pen, with your eyes), the walk and turn test, and the backwards recitation of the alphabet. As legislation evolves surrounding the legal use of medical and recreational marijuana, it is likely that field testing methodologies will evolve accordingly.
Q: Should designated consumption areas be separate from regular smoking areas, or should they be combined?
A: It seems as though the gray areas surrounding the use of marijuana never end! Legislation on designated consumption areas is still in its nascent stages. In Colorado, Initiative 300 was passed in late 2016, which allowed for the limited public consumption of marijuana. Business establishments could apply for permits that would establish a designated consumption area. However, establishments must still comply with Colorado’s Clean Indoor Air Act, meaning that only non-smokable forms of cannabis can be consumed indoors. All outdoor consumption may not be visible to the public, and establishments must develop an odor control plan. In California, you cannot smoke in public places unless stated otherwise. As well, it is illegal to smoke within 1,000 feet of a youth center, daycare, or school when children are present at the establishment. Marijuana consumption is allowed in private homes and in other businesses that have been granted a consumption license.
The only way to guarantee compliance to state and federal legislature is to constantly review your workplace’s drug and alcohol use policies, making sure they are appropriate for your type of company. For more information on how your workplace may be affected by marijuana legislation changes, watch this webinar, and check out part 1 and part 2 of this blog series.
Disclaimer: The content of this blog post is only meant to provide information, and in no way should be used as legal or other professional advice. The legal accuracy of the content is not guaranteed in any capacity. Readers are encouraged to seek formal legal advice if they have further questions or need clarifications.