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Marijuana is the most commonly used illegal drug in the United States. Although the drug is illegal under federal law, recreational and medical marijuana have been legalized in a number of states and the District of Columbia.
Employers may be concerned about marijuana use because of the negative impacts it may have on worker judgment, attendance, and safety. Despite some state laws legalizing marijuana, employers can prohibit marijuana use at work and can also prohibit an employee from being under the influence of the drug on the job. While an employer can still enforce a drug-free workplace policy, employers in certain states may have to take steps to avoid discriminating against medical marijuana users.
The federal viewpoint
Marijuana remains illegal under federal law, and it is classified as a dangerous drug with no approved medical use. An employer falling under federal drug-free workplace laws must prohibit marijuana use at work, and government publications detail problems associated with the drug.
Employers with federal grants or covered federal contracts must follow the Drug-Free Workplace Act and prohibit employees from using, manufacturing, or distributing drugs, including marijuana, in the workplace. State laws legalizing marijuana may note that an employer does not need to accommodate medical marijuana use if this would jeopardize the employer's federal contract or grant.
Transportation employers and those in other federally regulated industries must prohibit marijuana use. The Department of Transportation underscored its stance against marijuana with a statement indicating that its regulations do not authorize medical marijuana to be a valid explanation for a positive drug testing result.
Marijuana is classified as a Schedule 1 drug under the federal Controlled Substances Act. The federal Drug Enforcement Administration refused to reschedule marijuana to a lower drug schedule in 2011, and a federal appeals court agreed in a decision released in January 2013.
However, the federal government allows states a degree of control over marijuana and medical marijuana laws.
State laws — Medical marijuana
Laws legalizing marijuana for medical purposes may contain provisions protecting employers or employees. Some state laws stipulate that employers do not need to accommodate the use of medical marijuana, however, others indicate that employers cannot discriminate against a person who is certified to use medical marijuana.
A state law may protect a medical marijuana from discrimination based on a positive test for cannabis, unless the person was impaired at work.
State laws: Recreational marijuana
In some states, possession of a limited amount of marijuana is allowed for recreational use. These laws protect people from criminal violations when marijuana is used within the limits of state law.
These laws do not require employers to permit marijuana use in the workplace. Employers can prohibit workers from being under the influence of marijuana, and can ban the use of marijuana on company property.
An employer should check state law with regard to drug testing and possible limitations on consequences for a positive test for marijuana.
Americans with Disabilities Act
The federal Americans with Disabilities Act does not require employers to accommodate an employee's use of marijuana. Because marijuana is an illegal drug under the federal Controlled Substances Act, and has no current accepted medical use, it cannot be a reasonable accommodation for a disability. Terminating an employee with a valid medical marijuana card who tests positive for marijuana would not conflict with federal anti-discrimination law.
A state anti-discrimination law may prohibit employers from discriminating against a person for having a medical marijuana card or for using marijuana away from the workplace, however. Employers should check state law before taking action against a person who tests positive for marijuana. State law may prohibit an employer from taking action based only on a positive drug test for cannabis, unless the person was impaired by the drug at work. Employers should check state law and evaluate the feasibility of accommodations for medical marijuana users on a case-by-case basis.
Drug and alcohol policy considerations
An employer's drug and alcohol policy will be impacted by all applicable federal and state requirements. Employers covered by federal regulations requiring a drug-free workplace need to follow those laws and prohibit marijuana use in the workplace. An employer not covered by federal drug and alcohol regulations should look to state medical and recreational marijuana laws, as well as state drug testing laws, for other regulations that must be taken into consideration.
Employers may enforce drug-free workplace polices to the fullest extent allowed by law, and may require that workers not be impaired by marijuana use. Employers in states with nondiscrimination provisions for medical marijuana users need to consider an employee’s safety-sensitive job duties and whether an employee under the influence of marijuana would pose a direct threat to himself or others.
Employers should review their drug and alcohol policy to make sure they are complying with applicable state and federal laws. It is also important to ensure that workers understand a company's drug-free workplace policy and the consequences for not following it.
Workplace impact
Employers have valid reasons for enforcing a drug-free workplace policy and requiring that employees not be under the influence of marijuana in the workplace. Marijuana use impairs judgment, distorts perception, and harms coordination. It can also cause difficulty in thinking and problem solving, learning, and memory. Studies have associated marijuana use with:
- Increased absences
- Tardiness
- Accidents
- Injuries
- Impaired driving
It has also been associated with negative health effects, including:
- Respiratory illnesses
- Heart attack risk
- Psychotic reactions
The safety and productivity issues associated with marijuana use can raise concerns in the workplace. Employers should take their workplace needs into account, and work within applicable state and federal regulations, when establishing a drug and alcohol policy.