My staff calls me the Marijuana Madam. Not because I use marijuana, but because I continue to pay close attention to the ever-changing landscape of marijuana’s impact on the workplace.
Employers need to keep an eye on new developments regarding the legalization of marijuana. We’ve put together a great overview of what’s happened recently, and how it could affect your business!
Recent federal decisions about marijuana’s legality:
In August the federal Drug Enforcement Agency published a decision in the Federal Register about changing marijuana from a Schedule 1 drug to a Schedule 2.
- The DEA decided to leave marijuana as a Schedule 1, which means it’s illegal except for research purposes.
- The Schedule 1 classification also applies to drugs such as LSD, heroin, and ecstasy.
- Schedule 2 drugs are more likely to require a prescription and be dispensed by pharmacists and healthcare professionals.
The DEA’s reasoning about marijuana’s legal status:
The DEA reasoned that “marijuana does not have a currently accepted medical use in treatment in the United States.”
Marijuana has been researched extensively, but the FDA dismissed all but 11 studies for failing to meet their standards for legitimate testing. The DEA’s decision, however, did make it easier for research to be done on the medical benefits of marijuana, leaving the door open for a different decision in the future.
Marijuana’s impact on job safety & productivity:
Most employers’ concerns about marijuana focus on job safety and employee productivity.
The Drug & Alcohol Testing Industry Association says that studies have shown that employees who use marijuana have:
- 85% more workplace injuries
- 75% more absenteeism.
These studies imply that there is an increased cost to businesses when employees use marijuana. Based on research like this, many employers conduct pre-hire drug screenings and continue to include marijuana in their list of prohibited substances, even when the use is medical.
Ironically, the majority of our country’s population resides in states where marijuana use is legal in some respect.
Expanding legalization of marijuana:
Legalizing marijuana will be an issue on the ballots this November for nine more states, including California, where voters will decide on legalization for recreational use.
Conflicting data about marijuana and the workplace:
It’s important to note that research produces conflicting data about marijuana when it is studied more deeply.
For example, recently published research in the Health Economics Journal asserts that in states where medical marijuana is legal, absenteeism has dropped 8% — perhaps because its use treats health conditions that would otherwise cause employees to miss work.
Facts may still be murky in this regard, which makes it even more important for employers to stay abreast of new developments.
New court decisions about marijuana:
The courts continue to have a huge impact on this issue as more cases are brought forward.
Decision in favor of employers:
In Colorado — where recreational marijuana use is legal — the court supported the employer in the case of Coats v. Dish Network LLC. In this lawsuit, a quadriplegic who used medical marijuana was terminated for violating the company’s drug-free workplace policy, even though his use was off-duty.
The employee claimed he was protected by a state law that prohibits employers from terminating workers for lawful off-duty activities. But the court ruled that medical marijuana use was not legal, citing federal law.
Decision in favor of employees:
In Connecticut, a public employee was terminated when he was caught smoking marijuana in a work van during his shift. In this case, the state Supreme Court ruled that termination was too severe a punishment and reinstated the employee.
The court considered the fact that his use of marijuana was for medical reasons and stated it wasn’t egregious behavior, and that his return to work would likely not impact public safety.
How are different states dealing with marijuana?
It’s interesting to observe how individual states are coping with these situations.
In Minnesota, Arizona, and Delaware:
- Employers are prohibited from terminating an employee who tests positive for marijuana if that employee has a medical marijuana card.
- Businesses are allowed to terminate an employee if the worker is impaired on the job and a positive drug test corroborates it.
At least eleven states prohibit discrimination based on an employee’s possession of a medical marijuana card.
However, once an employer is aware of the card, they may also become aware of a disability requiring accommodation under the Americans with Disabilities Act. This makes the situation much more complicated to deal with.
We will no doubt continue to see rapid changes related to the legal use of marijuana.
If research results in an impairment test that is reliable, there will be better clarity in terms of workplace safety. Changes in Congress and a new president may also bring changes in policies.
Until we have better-defined rules, employers need to:
- Pay attention to their drug-free workplace policies
- Train their supervisors to recognize impairment
- Continue to keep an eye on courts and legislation