By Kristen Wakulchuk

Posted

Marijuana is now legal in some form in more than 30 states. As an employer in today’s constantly changing legal landscape, you have to be especially conscientious in upholding your zero-tolerance drug and alcohol policy – balancing compliance with a safe work environment and protecting your employees’ rights. It can be especially challenging if you have offices in more than one state, as laws can overlap or conflict with one another.  

 

Marijuana Use and the ADA  

Courts have consistently ruled that the Americans with Disabilities Act (ADA) does not shield workers from adverse employment actions if they are found to be using marijuana to treat a disability, even if they have refrained from doing so while on the job.  

  • The ADA exempts the “illegal use of drugs” from its scope. It defines this term to include any substances that are illegal under the federal Controlled Substances Act – which still bans marijuana. So, you can terminate an employee who tests positive for the drug, even if they are disabled, have been prescribed it for medical use, and only use it on their own time.  

 

Laws Vary By State  

Some states require employers to accommodate employees’ use of medical marijuana. Problems can occur as the result of an unassailable determination that an employee is impaired, thus warranting a drug test. This can create liability or lead to allegations that discriminatory testing has been conducted or wrongful employment actions taken.  

  • Some states where medical marijuana is legal do not require the accommodation of employee use. Others provide for varying degrees of necessary accommodations.   

 

Take the Right Steps  

To maintain a truly effective drug policy, even in states where the laws are the least friendly, follow these guidelines recommended by EHS Today, the leading source for environmental, health, and safety best practices:  

  • Clearly define “marijuana, cannabis” and related terms. Merely prohibiting “illegal drugs” can cause ambiguity. State explicitly that the use of marijuana, whether recreationally or on the job, is strictly prohibited.  
  • Be specific in articulating your testing policies and procedures. Include details on penalties for failing a test. Include your written policy in recruiting and onboarding materials.  
  • Educate your employees on relevant clinical issues. Describe marijuana’s effects on the body, the length of time it can continue to impair cognitive and physiological functions and its potentially harmful impacts on workplace safety and performance.  
  • Be consistent in administering your program. Make no exceptions and conduct testing uniformly for all employees. Failure to do so can subject you to liability for discrimination claims.  

Partner With Chane!

Chane Solutions is a nationwide leader in drug testing and background screening programs, customized to meet the specific needs of your company. Since 2006, we have helped our clients create and maintain safe working environments while minimizing costs and staying compliant. Contact us today to learn more.

 

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