State legislation regarding medical marijuana has created many gray areas for employers when creating drug free workplace policies and evaluating drug testing results. Even if an employer is not operating in one of the states that has legalized the use of medical marijuana, the issue is being debated in many state legislatures and could be introduced in the future.
Employers should know they have choices about how they handle medical marijuana in the workplace. To help avoid legal, regulatory and safety risks, there are several factors that employers should consider when establishing a position around medical marijuana use.
1. State laws vary
An employer’s position on medical marijuana should be clearly stated in its drug free workplace policy. However, the position should be developed in consideration of the state or states in which the company operates. Some state laws protect medical marijuana users from being penalized, while others don’t provide as much protection. Industry regulations must also be considered. For example, DOT-regulated employers may not accept medical marijuana for positions subject to DOT drug testing regulations.
When creating a medical marijuana policy, employers should also consider additional state laws concerning rehabilitation and disability that may coincide with medical marijuana use. Given the web of state and federal laws at issue, it is a best practice to consult with an employment attorney to mitigate risk.
2. Marijuana remains a Schedule I drug
Medical marijuana remains classified as a Schedule I drug, and as such it is prohibited from distribution and use under federal law. State medical marijuana laws authorize physicians to recommend the use of medical marijuana, but not to prescribe marijuana. Since marijuana remains classified as a Schedule I drug prohibited under federal law, many employers forbid its use by referring to federal legislation that prohibits the use of marijuana in the workplace. However, careful consideration should be given to additional factors such as state legislation regarding medical marijuana and “lifestyle” and disability discrimination laws.
3. Marijuana derived drugs are treated differently
While doctors cannot prescribe marijuana, only recommend it, they can prescribe marijuana-derived Schedule III drugs such as Marinol. If a person in a drug free workplace tests positive for marijuana but has a verifiable prescription for Marinol, then the positive result can be explained and the drug screen be verified negative (however, there may be a safety concern to consider).
For example, Sativex is an inhaled THC medication still in clinical trials. If approved, Sativex will be another verifiable medical explanation for a positive marijuana test. Even with the looser regulations around Schedule III drugs, the side effects of marijuana-derived Schedule III drugs may still present safety issues in some workplaces.
4. Consider the safety impacts of medical marijuana
Employers should consider the safety risks of an employee being under the influence of medical marijuana in each position. Some employers may ultimately apply different medical marijuana policies for different positions within the company. Regardless of how these policies are applied, this policy should be made clear to all employees and managers.
It’s important for employers to set a clear policy regarding medical marijuana. Failure to do so—or the introduction of policies that are ambiguous—could lead to serious implications such as violation of federal law, loss of federal contracts, safety issues or employee lawsuits.
Discover the percentage of your peers that have addressed medical marijuana in their drug free workforce policy by downloading the complimentary report: 2010 HireRight Employment Screening Benchmarking Report.