Rebecca Boartfield andTim Twigg
Much like prohibition, years from now, we may look back and have to remember a time when marijuana wasn't legal. The momentum for legalization, whether medically or recreationally, is picking up speed. State laws are changing, and employers are wondering how best to control or manage this with employees.
In 1996, California became the first state in the nation to legalize marijuana for medicinal purposes. Since then, 23 states and the District of Columbia have legalized cannabis in some form or another. Colorado and Washington became the first two states to legalize it for recreational purposes in 2012. Since then, Oregon and Alaska have followed.
As an employer, do these new laws mean that you have to allow employees to light up during work hours? What if you have implemented a drug testing program or a drug-free workplace? Are you not allowed to fire someone if he or she tests positive for tetrahydrocannabinol (THC)? This may have you concerned, particularly if you live in one of the areas where the laws have changed.
Federal perspective
Marijuana remains classified as a Schedule I substance under the Controlled Substances Act, making distribution of marijuana a federal offense. In October of 2009, however, the Obama Administration sent a memo to federal prosecutors encouraging them not to prosecute people who distribute marijuana for medical purposes in accordance with state law.
In late August 2013, the U.S. Department of Justice (USDOJ) announced an update to their marijuana enforcement policy. The statement reads that while marijuana remains illegal federally, the USDOJ expects states such as Colorado and Washington to create "strong, state-based enforcement efforts ... and will defer the right to challenge their legalization laws at this time." The department also reserves the right to challenge the states at any time it feels it's necessary.
State law implications
As of this writing, courts have all weighed in on the side of employers for cases involving medicinal cannabis and employer policy rights. Thus far, the recreational marijuana laws do not impose any new limits or obligations on employers, or create any new rights for employees when they are at work. As a matter of fact, the new laws in Alaska and Oregon, which go into effect February 2015 and July 2015 respectively, contain language protecting employer rights.
As of now, you're still allowed, when permitted by state law, to test for drugs, including THC, and to discharge an employee, if that's your choosing, for testing positive. Employers still have the right to control use during work hours, break time, and on the employer's premises.
Legal challenges
Last fall, the Colorado Supreme Court agreed to hear its first case challenging the perspective that employers can test for the mere presence of THC in an employee's system without other justification such as physical impairment. We're still waiting for what will be a landmark decision by the Colorado Supreme Court, regardless of which side the decision lands. While this case is in Colorado, the decision will be far-reaching and precedent-setting.
Other potential legal complications exist in Arizona and Delaware where state medicinal marijuana laws ban employers from firing employees for reasons only related to their off-duty medical marijuana use.
The bottom line is this: If you reside in one of the areas that have legalized marijuana - whether medicinally or recreationally - you may want to reconsider your own position and the policies you enforce. Employers who continue to test and take adverse action against employees simply because THC is present in their system, but do not exhibit other impairments, may be putting themselves in a position to be legally challenged and that legal landscape appears to be shifting rapidly with the impact on employers yet to be determined.
Conclusion
Be sure your employees know your rules regarding drugs and that you are well within your rights (at this time) to enforce them. There are sure to be more court cases and more laws created to help shed some light on managing these situations. Until then, be mindful of these laws and diligent about being informed. Consult with a professional to ensure compliance and minimize risks. These are interesting times. What does the future hold for marijuana? Keep your eye on this topic; it is likely to become a real employment compliance game changer.
Tim Twigg is the president of Bent Ericksen & Associates and Rebecca Boartfield is an HR compliance consultant. For more than 30 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more, call (800) 679-2760 or visit www.bentericksen.com.
