Confusingly, although federal law classifies it as a Schedule 1 drug (like heroin), medical marijuana is legal under the laws of 23 states including New Jersey.
In this ever shifting landscape, what policies must
employers create - - and how will they be implemented and communicated - - as
to: "drug testing", "zero-tolerance" complying with federal
law but not violating state law permitted medical or recreational usage; and balancing
"employee privacy protection" against "workplace safety and
productivity" concerns.
Increased
Workplace Marijuana Usage
Even before most states legalized marijuana usage, the
number of workers testing positive for marijuana use increased by 6.2 % in 2013
alone.
Anything impacting employees' ability to perform their
job function is of concern to employers and, although state laws vary, none
presently require employers to permit drug use in the workplace or tolerate
employees reporting to work "under the influence".
Thus, although employers may institute
drug-free-workplace policies, how these policies are defined and implemented is
critical, particularly for multistate workplaces in jurisdictions having
conflicting marijuana usage laws.
Drug Screening
and Workplace Usage
Pre-employment drug screening is legal in most states and
requires that the applicant be notified. However, because medical testing of employees may
violate federal anti discrimination laws, requiring a drug test only after
the applicant has accepted the job offer may be the safer practice.
Federal regulations still prohibit marijuana use and require
several classes of employees to undergo regular marijuana testing. The Department of Transportation's ("DOT")
"Drug and Alcohol Testing Regulations" bars "any 'safety-sensitive
employee' subject to drug testing under DOT’s regulations to use marijuana”,
which includes pilots, school bus drivers, truck drivers, train engineers,
subway operators, aircraft maintenance personnel, transit fire‐armed security
personnel, ship captains and pipeline emergency response personnel.
Similarly, the Americans with Disabilities Act ("ADA")
does not require employers to allow marijuana use as a "reasonable
accommodation" for someone with a disability, even if a registered medical
marijuana patient, and has been interpreted by the federal appeals court as not
protecting "medical marijuana users who claim to face discrimination on
the basis of their marijuana use.”
Workplace
Medical Marijuana Policies
Although two bills before Congress seek to reclassify
marijuana as a schedule 2 drug, myriad federal and state issues presently require
clear policies uniformly implemented and clearly communicated.
At the very least, complying with conflicting state
and federal "workplace drug testing and marijuana usage" laws and
regulations requires that employers:
#determine whether policy's objective is barring impairment
or drug use, the latter of which allows instituting a zero-tolerance policy
expecting all employees to be clear headed in order to minimize risk to
themselves and others;
#review federal regulations and state anti-discrimination
and marijuana usage laws to ensure that the policies are consistent and
compliant;
#update drug-use and testing policies to ensure that
they clearly explain "drug testing, impairment, and marijuana use
outside of the workplace"
expectations;
#implement systems and controls ensuring consistently
following stated procedures; #communicate policies to all employees clearly stating what is expected; and
#train managers about confidentiality issues regarding sensitive employee information including drug-test results and requests for exemptions for covered medical conditions for which marijuana is prescribed.
