Changes In Zero-Tolerance Drug Policies?

The heated debate about the legalization of marijuana has
affected nearly all realms of society. Employers in the states that have seen the
legalization of marijuana now need to consider reassessing long standing
no-tolerance policies.

Marijuana has been declared legal in twenty-five states for
medical purposes and in four states and the District of Columbia for
recreational use. Decriminalization of possession of small amounts of the drug
has posed the question as to why workplace policies are not reflective of new state
laws. The laws are still unclear and continue to change, causing confusion among
employers because of a lack of guidance from administrative agencies.

What makes things particularly difficult is the fact that
federal law remains unchanged. The policies can vary greatly from state to
state and do not give explicit directions for employers to accommodate employee
use. Marijuana is illegal under the federal Controlled Substances Act, which therefore
dictates that the Americans with Disabilities Act does not require employers to
accommodate marijuana use. Many state and federal courts have upheld that
employees may be terminated if they test positive for marijuana, no matter if
the use is recreational or medical. Explicit protection for employees is rare,
only occurring in a select few states.  As
imagined, this can cause problems between employers and their employees.  

While employers still have the legal right to terminate an
employee who tests positive for a drug test and are not require to accommodate
medical marijuana use, it is important to start a meaningful dialogue between
the employer and employee. As laws continue to change, considering changes in
workplace policy may be beneficial to working relationships.

Evidence shows that the laws are definitely changing.
According to the Society for Human Resource Management, a Michigan employer
recently settled a disability discrimination lawsuit brought by the Equal
Employment Opportunity Commission (EEOC) for over $40,000. In the case, the
employer argued that the employee was not terminated because of her disability
but due to the employee’s positive drug test, which resulted from the
employee’s medical marijuana use for her disability. Because the EEOC argued
that the employer’s reasoning was pretext for disability discrimination, the
case was moved to trial – a major step in the ongoing battle over medical
marijuana use.

Right now, zero-tolerance drug policies are legal and are up
to the discretion of the employer. However, when faced with an employee that
wants accommodation for medical marijuana, employers can adjust their policy if
they see fit.

Employers in the states that have legalized medical
marijuana can revise their zero-tolerance policy to a non-impairment policy,
whereby employees could be punished if their medical marijuana use affects
their work. Drug testing would only occur if the employer has suspicions that
an employee is under the influence.

In the grander scheme of things, having conversations and
interactions with employees that claim to use medical marijuana for
disabilities is imperative. In accommodating employees’ disabilities, employers
can prohibit the use and possession of medical marijuana in the workplace and
ask to see employees’ prescriptions and medical marijuana cards. Further,
employers may explore the possibility of providing paid or unpaid medical leave
for employees that need to use medical marijuana, especially for a short period
of time.

Though the laws are changing, we are still relatively far
from explicit protection of employees who use medical marijuana. States will
continue to wrestle with difficult laws and issues related to them. With
marijuana still illegal on the federal level, the rush for employers to change
policies is still off in the distance.



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