There are 24 U.S. states that have officially legalized medical marijuana use and four states – Alaska, Oregon, Colorado, and Washington – that have legalized it for recreational use. With similar legislation underway in other states, it is clear that legalization will continue to be granted countrywide on a massive scale. Cannabis users in these states can now enjoy the heightened freedoms of legal possession, but changes to their rights in the workplace remain uncertain. Many employers are struggling to determine how these new laws impact their drug policies or zero tolerance practices. With state laws and federal laws contradicting one another on the cannabis front, employers are forced to navigate these new statutes with little judicial guidance. It is important that both employers and employees feel that their rights are being protected while the integrity of the workplace remains uncompromised. Depending on the state and the federal status of businesses, different approaches must be taken to ensure that both work safety and employee rights remain a top priority.
The biggest concern for employers is how they are lawfully allowed to address staff drug use, both on and off the clock. Many companies utilize drug testing to ensure that employees are adhering to the safest work practices at all times. But what are the implications for addressing positive drug test results while abiding by the rights allotted to employees by state law? Some states including Arizona, Delaware, and Minnesota prohibit the termination of employees as a result of a positive drug test if they hold a valid marijuana card. However, employers are still lawfully permitted to discipline or terminate employees for submitting a failed drug test, especially if they are suspected to be under the influence on-site. This is particularly true for employers whose insurance policies are impacted by the regular use or heavy machinery or driving as an instrumental component of their business.
To combat the possibility of on-site intoxication, employers are anticipated to increase annual drug testing and adjust their drug use policies to clarify their expectations for employees on the clock. In states including California, Montana, Oregon and Washington, employers have the unrestricted right to practice according to their own drug policies regardless of the legality of cannabis use under state law — meaning that they will continue to have free range in how they decide to reprimand employees who fail to comply with their existing drug policies, both during and after work hours. For this reason, it is anticipated that Human Resource departments will begin to put a stronger emphasis on enforcing their drug policies, especially during the hiring process.
On the contrary, Federal contractors are almost completely unaffected by changing marijuana policies in their state because they are governed by federal marijuana policy above all. Entities and independent workers who contract with the federal government must abide by the Drug-Free Workplace Act. Although this law does not apply to off-site cannabis use, employees will not be exempt from the severe repercussions for failing a drug test as a result of using while off the job.
As the legalization of cannabis continues to increase throughout the country, federal policy will be forced to directly respond to these issues by adjusting their current governing laws. Until then, it is up to employers to find the best solutions that work for their needs.
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