A majority of states have enacted medical marijuana laws, and a number also allow recreational marijuana use. So, what does this mean for HR, workplace policies and practices?

Episode Info

What You Need to Know About Evolving Marijuana Laws

Can employees who carry medical marijuana cards be penalized for testing positive in a company screening? Are employees in states that have legalized marijuana allowed to use it on the job? With marijuana laws changing in many states, does pre-employment drug testing make sense anymore? In this episode, we answer these questions and provide some best practice tips on how to develop and enforce a fair and effective drug-free workplace policy.

Reference Shelf

Speaker Info

Kara Murray is the Vice President of Sales Operations for ADP's Small Business Client Channel. Kara has been with ADP for 9 years and has been in various sales and sales leadership positions while she has been with ADP. One of her primary goals is to educate our clients on the ever-changing HR landscape and how ADP can help them overcome everyday workplace challenges.

Kristin LaRosa is Senior Counsel for ADP's Small Business Services division. Prior to joining ADP, Kristin worked as an employment lawyer where she represented employers in litigation and provided legal advice and counseling on day-to-day employment and HR matters.

Meryl Gutterman is Counsel for ADP's Small Business Services division. Prior to joining ADP, Meryl worked as an attorney in private practice representing small businesses in employment-related matters.

Full Transcript

Kara Murray: In last year's mid-term election, Michigan became the 10th state to approve recreational marijuana. A majority of states also allow medicinal use, but what are the implications for the workplace.

I'm Kara Murray and this is HR[preneur], a podcast by ADP. We know you work incredibly hard to support your employees and make your business a success. More than likely this means you wear lots of hats and one of those might be HR professional. We're here to help you get the insight you need in order to tackle day-to-day workplace issues.

This week I'm joined by Kristen LaRosa and Meryl Gutterman. Both work as counsel for ADP Small Business Services.

I also want to take the opportunity to thank the ADP client appreciation program for sponsoring today's episode. You can earn free payroll by referring ADP and you can find out more by talking to your local sales representative.

Although marijuana remains illegal under federal law over 30 states permit medical or recreational use. So Kristen, can employers in these state still enforce a zero tolerance drug policy?

Kristen LaRosa: That's a great question, Kara. In all states, regardless of whether marijuana is allowed, employers still have the right to prohibit use in the workplace or during work hours, but when it comes to enforcing a drug-free workplace, employers needs to balance compliance with state laws that have legalized marijuana, especially when it comes to pre-employment drug testing and taking action against employees who test positive for marijuana and especially those who are prescribed it legally.

Recent court decisions in states like Connecticut, Massachusetts, and Rhode Island have suggested or held that in some cases employers can't refuse to hire a medical marijuana user based on a positive drug test and may have to provide these users with accommodations.

So to answer your question, I would say employers in these states can still enforce a zero tolerance drug policy, but may have to make some exceptions, especially where it pertains to medical marijuana users.

Kara: That's interesting. So let's say an employer is in a state that prohibits discrimination against applicants for testing positive for medical marijuana and the employer wants to conduct pre-employment testing. How should they handle a positive drug test result?

Kristen: If you're in a state that protects off-duty medical marijuana use and the applicant tests positive, you'll first want to verify that they are a medical marijuana card holder and if that's the case, you may have to give the applicant the opportunity to prove that the positive drug test was a result of medical marijuana use. And then you may also need to explore the reasons that the applicant uses medical marijuana and that can open the door to discussing whether the applicant has disability and whether or not that disability needs to be accommodated.

So there are a lot of complexities here and given all of the variables and also depending on the industry, there are some employers who are just giving up on testing for marijuana entirely.

Kara: As you just eluded, some employees may be using medical marijuana because of a disability. Would youth be considered a reasonable accommodation?

Kristen: That's a really good question. When we're talking about reasonable accommodation, we're talking about an alternative that would help someone with the disability do their job, but since marijuana use remains illegal under federal law, it's not something that employers are required to accommodate at the federal level.

That said, this is an evolving area at the state level. In 2017, the Massachusetts Supreme Court ruled that in some cases the use of medical marijuana off duty could be considered a reasonable accommodation and there now are other states who are also considering how to address off-duty medical marijuana use, so it's an issue you're going to want to stay on top of. Even if you can't accommodate medicinal use, still talk to the applicant or the employee to see whether there is an equally effective accommodation that you can offer.

Kara: That's interesting. What if an employee claims that because they're a medical marijuana card holder that the employer's drug policy doesn't apply to them?

Kristen: So we talked about how some states have employment protections for employees who use medical marijuana outside of work, but that doesn't mean employers are required to allow employees to use or be impaired at work, so in that sense the employer's policy would certainly continue to apply, despite the employee's card holder status.

The problem is how can you tell when an employee is impaired at work. A drug test can't show precisely when marijuana was used and also wouldn't indicate whether an employee was impaired while at work, which makes it difficult for employers to enforce their policies.

Also, states have rules and limitations around drug testing, so several states restrict random drug testing and even with reasonable suspicion testing, which is generally more permissible, you still have to consider some restrictions, like, what factors would constitute suspicion or cause to warrant the drug test.

Kara: So it sounds like there is definitely some risk at the state level. How can employers best manage this risk?

Meryl Gutterman: You're right, Kara, there definitely is some risk. To help manage your risk? It's a good idea to make sure that you understand the law, the state law, that applies to your business before you make any employment decisions related to medical marijuana users and if you're a multi-jurisdictional employer, you may need to implement different policies in different business locations to manage the risk in each state that you do business.

And when you're drafting your policies, make sure you're looking at all the job duties that the applicant or the employee must perform, consider whether the job is a safety-sensitive position, and make sure that you're conducting an assessment to determine whether the employee's outside use of medical marijuana would interfere with their job duties or perhaps cause a direct threat to either the employee or to their coworkers.

Kristen: That's right. And also employers need to know if they're subject to federally regulated safety standards, so in those situations medical or recreational marijuana use is not permitted.

Let's take the Department of Transportation as an example. If a DOT employee fails a drug test for marijuana, they can't perform their duties until they've seen a substance abuse professional and successfully completed the DOT's return to duty process, which includes a drug and alcohol test.

Kara: It seems like it would be best to come up with a plan with for how to respond before an issue arises. Kristen, what advice do you have for employers?

Kristen: Yeah, absolutely. I would strongly recommend working with legal counsel to determine your rights and responsibilities under the law. At a minimum you want to draft drug-free workplace policies carefully and clarify that use and possession of drugs that are illegal under federal or state law, including marijuana, are not permitted in the workplace or during work hours.

And employers who operate in states without any current marijuana laws are in a better position to enforce this policy, however, those in states that have laws in place should monitor the evolving case law and understand the potential risk involved in enforcing this kind of policy without providing for any possible exceptions for medical marijuana users.

Meryl: Just to add to what Kristen said, make sure that your drug-free workplace policy forbids employees from reporting to work under the influence and make sure that you reserve the right to conduct workplace searches upon reasonable suspicion, and while you can still opt for zero tolerance policy in the workplace, think about whether pre-employment testing for medical marijuana makes sense based on these evolving laws.

Kara: Thank you, Meryl, and thank you, Kristen. As always, this has been a great discussion. It sounds like it's an area of the law that continues to change.

We want to thank you all for listening to HR{preneur}. I'm Kara Murray, and for all the latest episodes subscribe in ITunes or wherever you listen to podcasts.

Podcast Overview

HR[preneur], a podcast by ADP's Small Business Services, is designed to help you get the insight you need in order to tackle day-to-day workplace issues. In each episode, you'll hear from industry experts about the latest in HR, such as the #MeToo movement, evolving marijuana laws, and more. Each episode will be between 10 and 15 minutes long, but full of practical advice. Find us on Apple® Podcasts or visit the HR[preneur] podcast page on Podbean.

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