A workplace drug screening that turned up marijuana use typically was an offense that could prevent someone from getting a job or result in job dismissal. This tended to apply even to employees who used cannabis for medical reasons, as opposed to purely recreational use. But the situation has changed, and today employers face a confusing patchwork of federal, state and local laws, and the consequences of a positive test aren't always so clear.
At the federal level, marijuana is still illegal. So, while the Americans with Disabilities Act requires that you make reasonable accommodations for qualified workers with disabilities, if anyone is possessing and using marijuana, it's still a federal crime, regardless of state law. This means that under the ADA, you don't need to accommodate marijuana use for approved medical reasons.
But the state situation isn't so clear. Thirty-four states and the District of Columbia have legalized marijuana for medical reasons. With conflicting federal and state laws, what do you do when a drug screening turns up evidence that a candidate or an employee has used marijuana?
Rules have evolved and jurisdictions have passed stronger protections for marijuana users who turn to cannabis as a treatment option for various health conditions. Emerging laws and court rulings make it clear that you must assess how you're going to approach your employees' permissible pot use and make changes to your policies and processes to stay in compliance.
No law obligates employers to accept marijuana use or impairment on the job. Even in states where marijuana is legal, organizations may maintain zero-tolerance workplace policies and thus take appropriate action when an employee is high while on duty.
A growing number of states are writing employment protections into their marijuana legalization statutes. Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Pennsylvania and West Virginia provide employment protections for medical marijuana patients. Note that cannabis rules are always changing, so be sure to check for the latest update in your jurisdiction.
These statutes prohibit discrimination against off-duty cannabis use or require employers to accommodate its use for medical reasons. But the statutes generally make exceptions for use by employees in certain safety-sensitive or federally regulated positions.
So then, what about your own policies? An employer's drug-testing and screening practices must comply with emerging laws in relevant states, even though all marijuana use is still illegal at the federal level. In states that cover medical marijuana patients under disability laws, employers should confirm whether positive drug tests are connected to medicinal use before making employment decisions.
Recent court decisions serve as an important lesson for employers: Don't discriminate against marijuana users simply because the drug is illegal at the federal level. That is no longer a tenable position.
Employers can lean on traditional HR practices by ensuring that a worker who seeks an accommodation for medical use has the appropriate medical certification — a written statement from the prescribing physician that clearly states that the duties of the position in question have been reviewed and the doctor believes the person can safely perform the tasks. However, the worker understands to refrain from on-duty use and not pose a risk in the workplace.
Employers can consider their own business needs and revise their policies — ending zero-tolerance drug testing but maintaining zero-tolerance drug-free workplace practices — turning to legal counsel to examine and amend processes. This is especially important for employee handbooks, which typically discuss drug policies. Again, companies should seek legal counsel.