Marijuana

The federal viewpoint

Recreational marijuana is classified as a Schedule 1 drug under the Controlled Substances Act, the highest classification level. This is the same class as heroin and LSD, with no accepted medical use and high potential for abuse. Medical marijuana is in a lower drug classification, and is classified as a Schedule III drug. This means that it is considered to have a low potential for dependence. Other drugs classified as Schedule III include ketamine, Tylenol with codeine, and anabolic steroids.

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.

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.

State laws: Medical marijuana

State laws legalizing marijuana for medical purposes may contain provisions protecting employers or employees. Some stipulate that employers do not need to accommodate the use of medical marijuana and 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 Attorney General's order moving medical marijuana from Schedule I of the Controlled Substances Act to Schedule III placed products containing marijuana approved by the Food and Drug Administration (FDA) and marijuana products regulated by a state medical marijuana in the lower drug category. Because drugs in this category have a currently accepted medical use, to avoid the risk of a discrimination claim under the federal Americans with Disabilities Act, employers in states where medical marijuana is legal should treat individuals using medical marijuana as they would treat any individual using a prescription medication. This includes having a discussion with the employee about accommodations, which may include off-duty use of medical marijuana. Employers should evaluate the feasibility of accommodations for medical marijuana users on a case-by-case basis.

In states where medical marijuana is not legal, employers would only need to consider accommodations for use of marijuana products approved by the FDA.

If an employee is acting unsafely or has exhibited performance issues, medical marijuana use is not an excuse. An employer can still take action based on signs of impairment and unsafe or unacceptable workplace behavior. Taking action based only on a positive test for marijuana is risky, however.

In addition, 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. 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.

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 for covered drivers, for example, must follow the details of the applicable law. In addition, employers required to have a drug-free workplace need to prohibit marijuana use at work and follow other requirements. An employer not covered by federal drug and alcohol regulations will need to consider accommodations for off-duty medical marijuana use as required under federal law. In addition, an employer 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 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.