As of Nov. 11, 2016, 26 states and the District of Columbia had passed laws legalizing the use of marijuana in some form or another. Nearly half of all states (and D.C.) have enacted laws legalizing the use of medical marijuana, while several states and D.C. have legalized the use of recreational marijuana. In addition, even in states that have not passed legislation legalizing either medical or recreational use, some cities within those state have. Laws vary greatly from state to state, offering various levels of protection for both medical and recreational use.
The federal government, however, has not legalized the use of marijuana – medical or otherwise. Under federal law, marijuana is still a Schedule I drug. Schedule I drugs, as defined by the United States Controlled Substances Act, are drugs that have a high potential for abuse and have currently no accepted medical use in treatment in the United States. In other words, regardless of how many states have legalized its use in any form, marijuana is considered an illegal drug under U.S. law.
Therefore, if your business is located in an area of the country that has not legalized the use of marijuana, situations regarding an employer’s use of the drug are cut and dried: marijuana is an illegal substance and should not be permitted to be used by employees.
On the other hand, if your business is located in an area in which the use of marijuana has been legalized, you will no doubt be forced to deal with employees who use marijuana either medicinally or recreationally. The issues you could face as an employer regarding employees’ use of marijuana are increasing and raise many questions you need to consider, such as:
- Is my current drug-free workplace policy viable and enforceable?
- How can I avoid discriminatory practices and claims when it comes to medicinal marijuana?
- How and when can my company screen for impairment on the job?
- What liability exists if an employee is injured or injures another on the job while under treatment with medicinal marijuana?
- What involvement does a union have with medical marijuana?
- How are OSHA safety programs and injury and illness recordkeeping affected?
The word of law varies greatly from state to state (and even from jurisdiction to jurisdiction within a given state) regarding the use of marijuana for medicinal or recreational purposes. However, one major issue you’ll face as an employer, regardless of where your business is located, is drug testing in the workplace.
Generally, employers may conduct drug testing on a pre-employment, random or reasonable suspicion basis, regardless of their location. Several courts have held that an employee is not protected if terminated from a job for smoking marijuana. The most recent case took place in Colorado, which legalized marijuana for recreational use in 2012. In 2015, the Colorado Supreme Court upheld a lower court ruling that an employer may fire an employee who participates in an activity that violates federal law. Regarding marijuana, this means that employers may conduct drug testing and may discipline and fire employees who test positive for the drug, even in states that have legalized its use.
We strongly recommend that you research your state’s law requirements and work with your safety advisor, legal counsel and your broker or insurance provider to ensure the correct workplace policies are in place to protect your organization.
Article by David A. Harnois – Affinity Club Underwriters
David A. Harnois, CCM is a Proud Employee Owner of Affinity Club Underwriters, specializing in commercial and group program business. David provides insurance solutions for hundreds of clubs throughout the world. He may be reached at (973) 984-1000 x111 or at www.affinityclubs.com.