Is your pot policy on solid ground?

With 28 states implementing medical marijuana laws, and eight states also passing recreational marijuana laws, the U.S. market for marijuana is growing rapidly. However, the Drug Enforcement Administration (DEA) classifies cannabinoids as a Schedule I controlled substance, the same as LSD and heroin. Laws surrounding marijuana use vary by state and many employers with offices in different states are left flummoxed. How do you write a blanket policy that affects all employees, but may not be enforceable in specific states? Employees in states where marijuana is legal are also confused.
They are apprehensive of employment- related drug testing, and the consequences if they are found to test positive for marijuana.According to a 2013 report by the Society for Human Resource Management, 78 percent of employers conduct drug testing on some portion of their workforce. This number jumps to 98 percent in the transportation industry. As explained by Edward Yost, human resources business partner with the Society for Human Resource Management,
“Most employers do [testing] because they don’t want employees doing something and coming to work, whether that’s drugs or alcohol. Alcohol is legal but you can’t drink it on the job.”
Here are some of the legal procedures employers and employees should be aware of when considering marijuana laws and company policies.

The Drug Free Workplace Act

In states where marijuana has been legalized, employers must first determine whether their workplace is regulated by The Drug Free Workplace Act. The Act requires that:

  • All federal grant recipients and contractors adopt a zero tolerance policy at their workplaces.
  • All federal grant recipients and contractors must certify to the federal government that their workplaces are drug free.
  • Employees are required to notify the employer within five days of any drug- related conviction in the workplace.
  • Employers are not required to conduct mandatory drug tests.
Safety- Sensitive Positions

If an employer is not required to comply with The Drug Free Workplace Act, the employer can still employ a zero tolerance for employees in safety- sensitive positions. These are positions in which an employee is responsible for the safety of the self or that of others, such as driving or handling heavy machinery.

Using Marijuana for Medical Conditions

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals on the basis of disability during job application procedures, hiring, compensation and employment packages, job training, and other terms of employment. Lawmakers have debated whether the ADA requires employers to accommodate employees’ legal use of medical marijuana to treat serious medical conditions. Only Arizona, Delaware and Minnesota explicitly protect employees who test positive for marijuana use and have medical authorization.

Off- Duty Use of Marijuana

Unless employers can demonstrate that an employee is impaired during work hours due to marijuana use, they may have to ignore a positive drug test in states where marijuana is legal. For example, Oregon’s Senate Bill 301 would make it illegal for employers to fire employees for off- duty marijuana use.

Unemployment Benefits

State laws fluctuate on whether an employee discharged for testing positive for marijuana metabolites is entitled to unemployment benefits. In Michigan for instance, an employee who is discharged after lawfully using medicinal marijuana outside the workplace, can still qualify for receiving unemployment benefits.

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