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What you need to know if you have employees who use medical marijuana

By Jay Starkman, Puget Sound Business Journal contributor

Since 1996, 20 states and the District of Columbia have enacted some form of legislation that allows for the non-criminal use of marijuana for medical purposes, with more states likely to follow suit.

Colorado and Washington are the only states at this time that allow for the recreational use of marijuana. Employers who operate in these states may be uncertain about what circumstances they can take action with respect to an employee who fails a drug test or otherwise admits to being a medical marijuana patient.

Here are some points worth keeping in mind:

• Marijuana possession and use remains illegal under the federal Controlled Substances Act. However, federal enforcement is curtailed in states that have sanctioned the use of medical marijuana. A handful of states have stringent laws prohibiting discrimination against qualified patients in employment decisions.

• In Arizona, Connecticut, Delaware, Maine and Rhode Island, employers may not refuse to hire or otherwise penalize an individual solely on the basis of that individual’s status as a qualified patient for medical marijuana use. Additionally, Arizona and Delaware strictly prohibit discharging, penalizing or refusing to hire lawful medical marijuana users based upon a positive drug test for marijuana components or metabolites unless (s)he used, possessed, or was impaired by marijuana while the patient was on the employer’s premises or during work hours. This means in Arizona and Delaware, a positive test result alone will not provide the employer with sufficient grounds to discharge. The employer must have additional evidence that an employee was under the influence of marijuana while at work.

• Another concern with the lawful use of marijuana occurs in safety-sensitive positions or when employees hold jobs that require them to operate motor vehicles. Most of the relevant statutes do not authorize the operation of any motor vehicle while under the influence of marijuana. However, the Delaware and Rhode Island statutes specifically state that a registered, qualified patient is not considered to be operating a vehicle under the influence solely because of the presence of metabolites or components of marijuana in his or her system.

Despite the stringent requirements in a handful of states, most states with medical marijuana statutes have expressly preserved the employer’s right to establish a drug-free work environment, and recent case law generally has supported employers in this regard.

So, how should employers respond?

Review your drug-free workplace policies to ensure compliance with local and state law. Employers in states that generally do not provide for employment protections should still review their policies for compliance as their state may have a “lawful activities” or “lawful products” statute.

Also consider if or when you will conduct drug testing. Employers may expect more challenges from employees who have failed drug tests, or who claim they were not impaired while working.

Whenever questions relating to such a dynamic area of the law arise (such as this), it is always best to consult an employment law expert, including a professional employment organization.

Jay Starkman is founder and CEO of Engage PEO, which provides HR services and counsel. 



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