Grab a bag of Doritos, fall onto your couch, and take hold of the remote, because it’s time to celebrate April 20th. That’s right, we’re gonna celebrate Star Trek legend George Takei’s birthday!
Come to think of it, being beamed up into space reminds us of another association with this date – marijuana… and this year it really echoes (4.20.2020). Today’s date has been used to celebrate and protest marijuana use since the 1970s and has become even more relevant since the legalization in many states of recreational and/or medical marijuana.
Many states and localities across the U.S. have legalized some form of marijuana use. In fact, as of August 2019, only four states have no public marijuana access programs in place. Complicating matters, marijuana is still illegal at the federal level; categorized as a Schedule 1 drug with no accepted medical use and a high potential for abuse. Although federal law supersedes state law, enforcement by federal authorities has thus far not been widespread against end-users.
This forces employers to navigate a delicate and complicated balancing act between legal and practical considerations.
Of top concern for employers is the safety of the workforce. THC, the main psychoactive compound in marijuana, has been shown to affect depth perception, reaction time, coordination and other motor skills, and can distort the senses. A study reported by the National Institute on Drug Abuse indicates that employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries, and a 75% greater absenteeism rate as compared to those who tested negative.
In the past, most case law and statutes regarding marijuana have favored employers. Employers have been allowed to discipline employees, as well as reject potential employees, for testing positive. However, recent rulings suggest a shift towards favoring employees. Those cases, including at least one federal decision, have said that failing to hire a candidate for testing positive, even though the candidate was a registered medical marijuana user, violated anti-discrimination laws. The same anti-discrimination analysis has been applied to action taken against current employees. Some states have even been proactive in protecting employee rights and safeguarding against disciplinary action for medical marijuana use. In today’s climate, employers are forced to face the prospect of defending lawsuits if they fail to hire or fire/discipline an individual using marijuana for medical reasons.
Employers must also consider that a strict marijuana policy may affect their ability to attract and keep otherwise qualified employees. A number of companies are even dropping marijuana testing altogether in order to compete for the best talent.
StraightforWARD Legal Advice:
For these reasons, it is imperative for an employer to have a strong and clear workplace drug policy that comports with that employer’s state laws (or, if operating in multiple states, each location’s state laws). An employer must consider, subject to applicable statutory protections, if it matters to them whether the employee uses marijuana on their free time, keeping in mind that a positive test does not necessarily mean the employee was high at the time of the test. There is often not a problem with a strict or zero-tolerance policy legally, but practically such a policy can significantly affect the ability to compete and may open up the business to being sued. Being impaired on the job should never be accepted, just like with alcohol, but tolerance level for use outside the workplace, keeping in mind both legal and practical considerations, is a decision to be made by each employer.
Live Long and Prosper.