The November 2016 election saw nine states pass legislation regarding the use of marijuana. Four states legalized its medicinal use (AK, FL, MT, ND), four more states legalized its recreational use (CA, ME, MA, NV), and AZ rejected the proposal for legalizing the recreational use of marijuana. This brings the total count of 28 states plus D.C. with current laws legalizing marijuana in some form. 11 more states are already looking to either propose or expand legislation in favor of marijuana use this year as well.
Even as marijuana use has become more publicly accepted and in some states legally decriminalized, federal policy has been slow to catch up. While marijuana is still considered an illegal Schedule I substance under federal law, employee policy becomes tricky when trying to balance federal and state guidelines. Because of federal law, employers are allowed to ban substances from the workplace, including marijuana, alcohol, and other drugs.
While any marijuana use can be prohibited, an employer’s ban may require exceptions in order to comply with state nondiscrimination laws. Since the Obama administration approached the issue with relaxed enforcement, and it is yet unclear how the Trump administration will proceed, it’s always a good idea for employers to remain acutely aware of their own employee/drug policies and make adjustments accordingly.
High Ridge Insurance Services ensures you are up to date with the latest guidelines and legislation concerning employee benefits and workplace policy. Read on to learn more about state versus federal marijuana compliance issues in the workplace.
Workplace Drug Testing & the Law
Since the Reagan administration, workplace drug testing became the standard, especially for federal employees. As laws have been changing in some states regarding recreational marijuana use, the confusion lies in the gray area between state vs. federal laws. Many people assumed the passage of these laws meant that they were free to use without consequence. However, many employers have not relaxed their policies, and the law is on their side.
In 2015, a Colorado Supreme Court case upheld the firing of a quadriplegic man who failed a drug test due to his legal use of medical marijuana. Colorado has a law protecting employees from termination due to legal marijuana use during non-work hours, yet the courts concluded the federal ban superseded the state law. Rulings in California, Montana, Oregon and Washington have also upheld the employer’s right to terminate for legal marijuana use when it violates company policy.
Federal bans generally supersede state protections, so employers are likely within their rights to mandate drug testing and use the results for employment decisions. Even when states specifically protect employees from marijuana-related prejudice, the employer is often protected by federal guidelines.
However, there is still confusion in the gray area between state vs. federal legalities and how each state’s courts choose to enforce the law. Of the 28 states with some form of legal marijuana consumption, eight have passed laws protecting medical marijuana users from punishment in the workplace: AZ, CT, DE, IL, ME, NV, NY, MN. Whether or not they will uphold those laws in the court remains to be seen.
Basic Guidelines for Employers
In all cases, it is important to follow established state rules regarding workplace drug testing. The federal guidelines only apply to federal agencies and certain organizations that receive federal funding. As such, the authority of how drug tests are administered and what reasons are acceptable fully rests with the states.
Before you make any decision to screen an employee, it’s important to refer to your state’s specific guidelines about providing notice and following procedures intended to prevent discrimination and inaccurate samples.
In order to require a prospective employee to submit to a drug test, most states require you take the following steps:
- Inform the applicant that a drug test will be required.
- Offer the applicant the job, contingent on passing a drug test.
- Require similar testing procedures for all applicants pursuing similar jobs in your company.
- Have all testing performed by a state-certified laboratory.
In order to require a current employee to take a drug test, most states require the circumstances meet the following criteria:
- There is probable cause to believe an employee is under the influence of drugs.
- An employee is involved in an accident that results in physical harm or destruction of property.
- The employee recently completed a drug rehabilitation program.
- You provide a copy of the drug test to the employee and give them an opportunity to challenge the results by ordering a retest of the sample.
Failure to meet your state’s laws regarding drug testing could result in the test being deemed inadmissible and open your company up to lawsuits for wrongful termination and invasion of privacy.
For the latest in legislation changes concerning employee policy, benefits, or HR services, High Ridge Insurance Services is here to help. Explore our website or visit our contact page to reach us directly.