How medical marijuana laws affect your substance abuse policy

Terri Dougherty

“One of our employees tested positive for marijuana, but he has a medical marijuana card. There’s nothing I can do, is there?”

“State recreational marijuana laws aren’t anything to worry about. Our employees know it’s not allowed in the workplace, don’t they?”

To effectively address the issue, stay on top of changing laws and maintain a current… 

Image provided by Getty Images (Rouzes)

“We spent a lot of time creating a great substance abuse policy a few years ago, so there’s no point in looking it over again, right?”

If you hear comments like these in your workplace, the next word you hear may be, “Ouch!” The speaker has just stumbled over the issue of substance abuse.

Assumptions within your organization may lead workers to use poor judgment, or an improperly managed substance abuse policy may fail to serve its purpose. To effectively address the issue, stay on top of changing laws and maintain a current policy that’s communicated to your workforce.

Medical marijuana can be forbidden

Medical marijuana is legal in 23 states and the District of Columbia, but even in those locations, employers can enforce drug-free workplace policies.

A person using medical marijuana within the limits of state law won’t face criminal charges, but employers are not required to allow workers to use, or be impaired by, the drug at work. Courts have consistently ruled that employers can take disciplinary action based on a positive drug test for marijuana.

Some more recent state medical marijuana laws include anti-discrimination provisions or may not allow a positive test to indicate impairment. In these states, employers need to look more closely at the situation before taking an adverse employment action. Considerations may include the worker’s job description, signs of impairment, and whether the worker lawfully used marijuana.

A few state laws, which have not been tested in court, require employers to accommodate medical marijuana cardholders. Employers in these states should take extra steps to meet their obligation to consider employee rights, but are not required to allow workers to use medical marijuana at work.

In addition, because marijuana is classified as an illegal drug under the Controlled Substances Act, allowing medical marijuana use is not a reasonable accommodation under the federal Americans with Disabilities Act.

However, an employer still must consider whether there is another reasonable accommodation when an employee indicates that one may be necessary because of a disability.