So You Want to Address Medical Marijuana in Your Workplace Drug Policy?

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A number of employers are responding to the rapidly changing environment of medical marijuana laws in the United States by engaging in a review of their workplace drug policies.

In fact, some of these organizations are considering including provisions in their policy that directly addresses medical (and sometimes recreational) marijuana use by employees.

If your organization is contemplating how to address the issue of medical marijuana, there are some best practice guidelines that can help maximize the effectiveness of your revised workplace drug policy:

  1. Determine if your organization is comfortable creating a policy with exceptions.
    During the initial phases of your policy review, your organization may have concluded that widely accommodating medical marijuana users is inconsistent with the fundamental elements of your make-up.

    You may, however, be compelled to accommodate users in certain locations given the laws in those states. Since doing so could create inconsistencies in your policy (e.g., taking adverse action based on a positive drug test for marijuana in every location but Arizona), your organization should assess its own internal tolerance for managing these exceptions and communicating them to employees.

    Similarly, you may have determined that you do want to accommodate medical marijuana users, except for those in safety-sensitive positions. In this situation, exceptions would exist and your tolerance for these inconsistencies would need to be gauged.

  2. Ensure that your testing panel comprises the right drugs.
    If you have determined that you want to broadly accommodate medical or recreational marijuana users, it could be in your best interest to remove cannabis from your testing panel.

    This could potentially help alleviate the adjudication of medical review officer (MRO) exemptions and make your testing program more cost-effective. In this situation, you should work directly with your employment counsel to determine if this course of action reflects your best interests and complies with federal, state, and local laws.

  3. Establish how your organization will determine “proof” of a medical marijuana exemption.
    Most MROs currently will not recognize a medical marijuana exemption and will instead transfer the liability of a hiring, retention, or disciplinary decision back to the employer.

    So if you outsource your drug screening process and utilize a third-party MRO, your organization may be unfamiliar with how to manage claims of legitimate medical use.Likewise, if you manage this process in-house, you may not be currently comfortable with processing medical marijuana exemption claims, given that there is no outright prescription from a physician.

    Therefore, your organization should consider possible options, like requesting a copy of a state-issued card from the individual or a letter from the recommending physician. Once again, engaging your employment counsel can help you better understand how to manage this process.

  4. Include specific language as to use, possession, or influence in the workplace or when performing employment duties.
    Those employers that do want to accommodate marijuana users typically draw the line when it comes to the drug’s direct effect on the workplace.

    As a result, many policies that accommodate recreational or medical marijuana use usually have provisions that employees are prohibited from possessing, using, or being under the influence of marijuana while at work—similar to many organizations’ approach to alcohol use by employees.

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The HireRight Blog is provided for informational purposes only and should not be construed as legal advice. Any statutes or laws cited in this article should be read in their entirety. If you or your customers have questions concerning compliance and obligations under United States or International laws or regulations, we suggest that you address these directly with your legal department or outside counsel.