Whether you are in a state that has already legalized the use of marijuana (medical or recreational), or you are just waking up to your state passing the legalization last night, you need to consider its impact on your workplace.
How does legalized marijuana use come into play in regards to your Zero Tolerance/Drug Free Workplace policy? Are you required to accommodate the use of medical marijuana during an employee’s shift? Does language in your employee handbook conflict with your state’s laws? These are just a few of the questions a business needs to take into serious consideration.
For example, some states, such as Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, and New York require an employer to accommodate registered medical marijuana users, and the employer cannot take adverse action against an employee simply because of their participation in a recognized medical marijuana program. Therefore, an employee testing positive for marijuana cannot be immediately terminated under a zero tolerance policy. On the other hand, an employer does not have to allow an employee to work while under the influence.
As for recreational use, the law is on the side of employers in the sates of Alaska, Colorado, and DC, as employers are not required to permit the use, sale, possession, or transfer of marijuana in the workplace. Some states are silent on such requirements, such as Oregon and Washington. In these recreational state cases, revising your employee handbook to have a policy that prohibits the use of marijuana while at work can provide protection from lawsuit in the termination of an employee for his or her recreational use.
While this is new territory, with federal and state laws colliding and the medical vs recreational use consideration, employers need to get familiar with the new statutes in their state. Employers should, at a minimum, consult with legal counsel and/or HR professionals to implement policies that fit your business and are in compliance with the law.
As with any PayMaster blog, this blog does not offer legal advice and the accuracy or suitability of its content for a particular purpose is not guaranteed. The states mentioned in this blog are prior to the results of the November 8th, 2016 election where a number of states have the legalization of recreational and/or medical use on their ballot.