With medical and recreational marijuana becoming legal in more and more states, when to drug test – if at all – is one of the most challenging questions facing employers. As of the writing of this alert, recreational marijuana is legal in 19 states (including New Jersey and New York), two territories, and the District of Columbia. Medical marijuana is legal in 39 states (including Pennsylvania, Delaware, New Jersey, New York and Maryland), four territories, and the District of Columbia.
Many state and local laws include substantial employment protections for people who engage in lawful behavior with respect to marijuana, which creates challenges for employers because testing for THC – the main psychoactive compound in cannabis that produces the high sensation but also is present in medical marijuana – remains an inexact science. Unlike alcohol, THC remains in the body’s system for an extended period of time, making it difficult to tell from test results alone if an employee is impaired at work (a terminable offense) or legally ingested cannabis the night, or even several days, before.
The good news for employers is that, in general, it remains legal to ban the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis or cannabis items in the workplace and during work hours, and employers may forbid employees from coming to work under the influence of marijuana. In addition, employers may administer drug tests to employees and may be entitled to discipline or discharge an employee who used, possessed, or was under the influence of marijuana while in the workplace or during work hours. Best practices dictate (and, in some cases, the law requires) that employers train their supervisors to detect reasonable suspicion for impairment and to take an adverse employment action only when documented reasonable suspicion is combined with a contemporaneous positive test. Deciding whether and when to test is not a black and white issue, and employers in many cases must consider and weigh the legal risks associated with this decision, as well as the impact on safety, workplace culture and recruitment and retention.
Employers in states with medical marijuana statutes also must be mindful of legitimate employee medical needs and how such laws may impact their reasonable accommodation obligations under disability discrimination laws. Many recent court decisions have recognized increased protections for medical marijuana users, holding that permitting use of medical marijuana recommended by an employee’s doctor can be a reasonable accommodation such that an employer must, at a minimum, engage in the interactive process under disability discrimination laws.
Through all of this, employers must remember that marijuana remains an illegal drug under federal law, and employers subject to Department of Transportation and federal contractor requirements regarding drug-free workplace policies and marijuana testing may need to adjust their policies accordingly.
Employers should consult with experienced human resources professionals and/or labor and employment counsel when in doubt about implementing drug testing policies. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney are available for additional consultation.
For additional information, please join us on July 19th at 11 AM for ourMEA Insights Webinar on Marijuana & the Workplace: Employer Challenges.
Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.