Doctors smoke it, nurses smoke it
Judges smoke it, even lawyers too
So you’ve got to legalize it
And don’t criticize it
— Peter Tosh, “Legalize It”

Although Peter Tosh advocated for legalization of marijuana in 1976, it took 40 years for states to heed the call.

As of the November 2018 midterm election, a total of 33 states, the District of Columbia, Guam, and Puerto Rico have approved some form of medical marijuana/cannabis programs. Ten states plus the District of Columbia have legalized recreational cannabis, according to the National Conference of State Legislatures.

As more states legalize recreational and medical marijuana, employers and employees alike have questions about workplace drug policies and practices that may be outdated in light of recent legislative action.

Controlled Substance Act

The federal Controlled Substance Act (CSA) continues to include marijuana as a Schedule I controlled substance — on par with heroin, LSD, and Ecstasy. Schedule I drugs are defined as drugs with no currently accepted medical use and a high potential for abuse.

The federal government has not indicated any intention to reconsider the Schedule I classification of marijuana, although, under President Obama, the Department of Justice had issued guidance setting forth policy for the federal government to decline intervention with state laws legalizing medical marijuana use.

In 2018, however, former Attorney General Sessions rescinded that guidance, further clouding the federal/state inconsistency in treatment of marijuana. Acting Attorney General Matthew Whitaker has not spoken on this issue since assuming the role after Sessions’ departure, and no bills are currently before Congress to remove cannabis from the list of Schedule I controlled substances.

The advancement of medical and recreational marijuana laws has muddied the waters for employers in more than half of the United States. While the CSA views marijuana as a drug with no currently accepted medical use, 33 states disagree and have enacted legislation that specifically recognizes the medical benefit of marijuana.

Is Texas Next?

Even in traditionally conservative Texas, the Compassionate Use Act legalized small quantities of medical marijuana for Texas residents who suffer from intractable epilepsy (subject to certification of medical benefit by two physicians).

The legislative session that convened this week appears poised to relax the state’s marijuana laws further, with at least 12 bills already filed. SB90 would permit physicians to prescribe cannabis as they do any other drug useful for treatment of an illness or pain management, and HB209 would legalize cannabis, including homegrown, for treatment of a wide range of conditions. Other bills would reduce penalties for small amounts of marijuana, following the lead of some counties in decriminalizing possession of less than two ounces.

Weed and the Workplace

The workplace challenge is obvious. Employers must comply with federal law, as well as the laws of the states in which they do business. When those laws are inconsistent, employers must carefully implement policies that do not adversely impact compliance with other laws.

For federal contractors and the transportation industry, the answers are clearer. The federal Drug Free Workplace Act (DFWA) applies to certain federal contractors and grantees and requires them to maintain a drug-free workplace. Employers subject to the DFWA face stiff penalties for noncompliance, leaving them with no choice but to maintain a drug-free workplace, notwithstanding the fact that marijuana may be legal in some form under state law.

Many state laws legalizing marijuana have carve-outs for federal contractors and grantees to exempt them from compliance with the state law. Special rules also apply to employers in the transportation sector with employees whose jobs are considered safety-sensitive (e.g., pilots, bus drivers, train engineers, truck drivers, ship captains). The Department of Transportation has a zero-tolerance policy regarding controlled substances, including marijuana, and imposes mandatory testing provisions.

State Regulations Vary

For non-DOT employers, drug testing is generally governed by state law. Drug testing laws have not always kept pace with marijuana legislation, but some states have implemented new laws. For example, in Maine, employer drug testing policies must be approved by the Maine Bureau of Labor Standards before implementation. It is vital for employers to be familiar with the current drug testing requirements (if any) in the states where they operate. Employers should maintain a clear drug test policy with defined parameters and expectations. Such policies should be applied consistently to all employees to avoid concerns regarding disparate or discriminatory treatment.

If an employee tests positive for marijuana, employers must be aware of limitations on the decision to hire or fire an employee. In some medical marijuana states (e.g., Rhode Island and Pennsylvania), employers cannot discriminate against employees “solely” on the basis of their status as a medical marijuana user. In other states (e.g., Minnesota and Delaware), employers are prohibited from terminating employees who test positive for medical cannabis unless they can demonstrate the individual was impaired on the job.

Employers in states with medical marijuana statutes must also be mindful of how such statutes impact their reasonable accommodation obligations under state and federal law. Recent court decisions have resulted in increased protections for medical marijuana users, holding that use of medical marijuana recommended by an employee’s doctor can be a “reasonable accommodation.”

Keep Handbooks & Job Descriptions Updated

Employee handbooks and job descriptions should clearly identify essential duties of each job description and define those that are “safety sensitive.” Employers should also have an establish protocol for discussion of accommodation requests to engage the employee in an interactive process.

Ensuring that workplace policies and procedures reflect current law is always challenging, but the rapidly evolving laws regarding marijuana – and the ongoing conflict between state and federal laws – make this challenge particularly acute for employers.

The experienced employment attorneys at Clouse Brown can help ensure that employers stay in compliance with current law.

Alyson Brown

About Alyson Brown

Alyson Brown represents employers and executives in all facets of the employment relationship. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Brown has tried cases in state and federal courts throughout Texas and in other states. She represents clients in a broad range of industries, including health care, banking, energy, high-tech, retail, manufacturing, hospitality, and nonprofit organizations. She can be reached at abrown@clousebrown.com.

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