During the most recent election day, voters approved ballot measures legalizing marijuana use in some form in the states of Michigan, Utah, and Missouri. Consequently, there are now 33 states that allow some form of medical marijuana and 10 (plus the District of Colombia) that have legalized recreational use of marijuana. In New York, state laws have legalized the medical use of marijuana and there appears to be ongoing discussion concerning the legalization of marijuana for recreational use. The ongoing expansion of the legalized use of marijuana, whether for medical or recreational purposes, has created issues for employers in reconciling their drug testing policies and practices with these new laws.
Although marijuana remains a Schedule I controlled substance on the federal level, on par with heroin and LSD, employers are wrangling with the realities created by state laws. Prior to the recent wave of state laws, employers relied upon zero tolerance drug testing policies. In the event a post-offer applicant tested positive, employers typically withdrew the offer of employment, except in instances where the positive result was due to a drug prescribed by a health care provider.
More recently, employers have been adopting or revising policies which either entirely exclude testing for marijuana or limit testing for marijuana to safety sensitive positions and/or positions subject to federal drug testing regulations, such as the DOT.
In a number of my recent seminar presentations, human resource professionals in the audience have noted changes to drug testing policies consistent with those described above. In some instances, employers have simply eliminated testing for marijuana given the shrinking applicant pool and the desire to avoid losing an otherwise qualified candidate who may use marijuana on a recreational basis outside the workplace.
An adopted or revised workplace drug policy should make it clear that employees are not permitted to show up for work in an impaired condition. As with an employee who would show up inebriated, intoxicated or drunk, an employee who appears “stoned” at work should be sent home immediately by taxi or Uber. Disciplinary consequences can await the employee’s return to work.
Finally, New York employers should note that recent amendments to the New York Public Health Law provide that where an employee certified as a medical marijuana patient, the employee has the same protections afforded to an employee with a disability. This new law creates a further tension for an employer who seeks to follow the federal law prohibiting the use of controlled substance and state law authorizing the use of the same. In the event such tension becomes a reality in a workplace, the employer is well advised to consult with legal counsel to navigate these issues.