We’re all aware by now that marijuana has been decriminalized in several states—Colorado, California, and New York to name a few—and citizens of those states are now entitled to use the drug recreationally. Several more states have implemented statutory protections for medical marijuana use. Most of the rest allow CBD or low-THC products. There are only three holdout states which have no public cannabis access program. Rules on when and where citizens can use marijuana vary significantly between jurisdictions and there is no unifying federal guidance in sight. So, how do employers, particularly those in multiple states, deal with the dope dilemma?
First, we recommend that employers have a written drug policy which has been reviewed by an employment lawyer from each state where the company has employees. The employee’s home jurisdiction’s laws on the issue will generally govern over those where the company headquarters is located, so it’s important to have the state-specific review completed if your enterprise crosses borders.
Generally, so long as you can reasonably state that the job requires sobriety to ensure safety, you are fine to have a policy prohibiting drug (including marijuana) use. Safety-sensitive industries like transportation or manufacturing are particularly safe bets for a drug-free workplace policy. However, employers must be aware that, for less safety-sensitive jobs, they may need to reasonably accommodate an employee’s use of medical marijuana. Reasonable accommodation does not require an employer to allow on-the-job use or impairment.
Any written policy should include a description of what discipline may stem from an employee’s violation of the policy. Will you use a multi-step warning system or will the no-drugs policy be strictly enforced to the point that a positive test could result in immediate termination? What about possession or intoxication in the workplace? Provide training to your supervisory staff as to what constitutes a violation and how those violations will be enforced.
One of the most important things an employer can do with any disciplinary policy is to apply it consistently. Nothing will open an employer to liability faster than a policy which is unfairly enforced along race, gender, or other protected-class lines. So, monitor enforcement activities—does it appear that one shift or class of employees is receiving more discipline than another? Is your testing selection process truly random?
Finally, ensure that your policy is reviewed on a regular basis to stay abreast of changes in your state’s legislation or enforcement practices. It’s good to schedule at least an annual review with your employment attorney, but if your state passes legislation that impacts your policy, be sure to get it updated ASAP.