Does Your Company’s Drug-Free Workplace Policy Pass Muster in Today’s Legal Climate?
By Katherine Goetzl, Shareholder, Littler
The recent legalization of marijuana for recreational use in Colorado and Washington as well as the continued proliferation of state laws authorizing medical marijuana use is cause for concern for many employers. Whether an employer can take adverse employment action (such as declining to hire or terminating) against an individual for marijuana use will depend upon the law of the state where the employment is located. Therefore, how to address marijuana use in a drug-free workplace policy is particularly challenging for employers with multi-state operations. The issue can be further complicated if the employer has employees who are regulated by the Department of Transportation (DOT) which takes a zero tolerance attitude toward marijuana use of any kind.
At this time, more than 20 states have legalized medical marijuana use and two states have legalized recreational marijuana use. Most of the medical marijuana laws and both of the recreational marijuana laws place no obligations or constraints on employers with regard to how they treat individuals who engage in such marijuana use.
This seeming conflict between what is permitted by the laws and what is permitted in the workplace stems from the fact that the laws are intended to provide individuals with defenses to state criminal drug charges, not with employment-related rights. The first case to address the issue of medical marijuana in the employment context was Ross v. RagingWire Telecommunications, Inc., which was decided by the California Supreme Court in 2008. In Ross, the employee used medical marijuana in compliance with the state law, but was terminated for testing positive for marijuana on a workplace drug test. The court ruled that his termination was legal because, among other things, the medical marijuana law provided exemptions to criminal liability, but no rights in the workplace.
However, a handful of the medical marijuana laws do require employers to accommodate medical marijuana use as they would the use of any other prescription drug. For example, in Maine, an employer may not discriminate against a medical marijuana user unless not doing so would violate federal law or cause the loss of a federal contract or funding. In Rhode Island, there are no exceptions to the prohibition against employment discrimination based on medical marijuana use. Similar restrictions on an employer’s ability to take adverse action against a medical marijuana user exist in Arizona, Connecticut, Delaware and Illinois.
TOP NINE DRUG-FREE WORKPLACE POLICY MISTAKES
Even policies that have been carefully developed with the best intentions can have some fairly significant mistakes. These mistakes can create trust issues with your employees and legal liability for your organization.
Some of the most common mistakes that appear in drug-free workplace policies include the following:
Failing to address recreational and medical marijuana use directly (applicants and employees should have advance notice of the employer’s position)
A requirement that employees disclose all prescription drug use
Prohibition of illegal drug use only on duty, instead of at all times
A requirement that employees undergo rehabilitation after a positive test result in the absence of a substance abuse professional’s recommendation
Prohibition of termination after a positive test result
Random alcohol testing of all employees
Adherence to DOT procedures for non-regulated employees
Inconsistent application of policy disciplinary measures depending upon illegal drug at issue
No definition—or an inaccurate definition—of “illegal drugs”
Because marijuana has been legalized for medical use in many states but remains illegal as a matter of federal law, it is important to define illegal drugs to include drugs that are illegal under federal law. Defining illegal drugs as drugs that are illegal under state or federal law will convey to applicants and employees that the employer does not tolerate medical marijuana use unless required to do so by state law.
If you recognize any of the above problems from your company’s drug-free workplace policy, you should consider having a professional review and update your policy to make sure that it is in tune with the current legal climate and clearly communicates what your company expects of its workforce.
ABOUT THE AUTHOR
Katherine Goetzl advises and litigates on behalf of employers in all types of employment disputes in state and federal courts, before the Equal Employment Opportunity Commission and state fair employment practice agencies. She has experience handling bench and jury trials and arbitration and mediation. Additionally, she has expertise in drug-testing issues and has helped employers to draft and implement substance-abuse prevention policies.
Littler is the largest global employment and labor law practice, with more than 1,000 attorneys in over 60 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single-source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 70 years.
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