Not long ago, a workplace drug screening that turned up marijuana use was a fireable offense. These days, employers face a confusing patchwork of federal, state, and local laws regarding the drug and the consequences of a positive test aren’t always so clear.
At the federal level, marijuana is still illegal. The Controlled Substances Act lists the drug as a Schedule I controlled substance. While the Americans with Disabilities Act requires employers to make reasonable accommodations for qualified workers with disabilities, possessing and using marijuana for any purpose is still a federal crime, regardless of state law. That means under the ADA, employers don’t need to accommodate marijuana use, even for approved medical reasons.
But at the state level, the path forward isn’t so clear. So far 34 states plus the District of Columbia have exercised their rights to legalize marijuana for medical reasons. In 11 states and the District of Columbia, smoking pot for recreational purposes is legal too.
With these conflicting federal and state laws, what’s an employer to do when a drug screening turns up evidence that a candidate or an employee has used marijuana? Can the individual still be fired?
As the rules evolve and jurisdictions pass stronger protections for marijuana users, it depends. But, whatever the decision, emerging laws and court rulings make it clear that organizations must assess how they approach their employees’ permissible pot use and make changes to their policies and processes to stay in compliance.
State Laws May Vary
No law obligates employers to accept marijuana use or impairment on the job. Even in states where marijuana is legal, organizations may maintain zero-tolerance workplace policies and take appropriate action when an employee is high while on duty.
What employers must evaluate are their zero-tolerance drug testing policies. That’s because some state and local laws, along with recent court decisions, mandate accommodation for pot use.
In 14 states where medical marijuana is legal — Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Hampshire, New Mexico, New York, Oklahoma, and Pennsylvania— laws expressly require that employers not discriminate against medical marijuana users.
In Maine and Nevada, where both medical and recreational pot are legal, lawmakers have taken it a step further; there regulations say employers can’t make adverse decisions about most workers’ employment based on their marijuana use outside of the workplace. And in New York City, new laws tackle the issue of a job candidate’s marijuana use and prohibit most pre-employment tests for marijuana.
Many states are not as clear in addressing accommodations for current employees and job seekers. In 13 states, medical marijuana use is legal, but employers have no duty to allow its use. Seven states that have legalized medical marijuana are silent on the issue of employer accommodation.
Court Rulings on Weed
That sends us to case law, where some decisions speak to the need for accommodation. Prior to 2014, court rulings more often fell on the side of the employer, but the legal landscape is evolving. Since then, courts have been more likely to rule in favor of marijuana-using employees in states that expressly require employer accommodation.
Notable case law includes the Delaware Superior Court’s 2018 decision in Chance v. Kraft Heinz Foods Co. In this case, after a job site accident, Kraft Heinz fired an employee for failing a drug test even though he was a medical marijuana cardholder. The court held that the anti-discrimination provision of Delaware’s medical marijuana law is not preempted by the federal Controlled Substances Act, allowing the worker to proceed with most of his claims.
This ruling could inform court decisions in other states going forward. It also should serve as a warning for employers that the argument that they can discriminate against marijuana users simply because the drug is illegal at the federal level may be a losing proposition.
In another case, Whitmire v. Wal-Mart Stores, Inc., an employee who was a medical marijuana user in Arizona took a drug test triggered by an on-the-job injury and tested positive for pot. Though the screening took place two days after the injury, Walmart fired the employee, claiming that the test result indicated she was high when she was injured during her shift. She sued Walmart, arguing that her termination violated the Arizona Medical Marijuana Act, and won.
Like Delaware’s law, Arizona’s rules clearly prohibit discrimination against marijuana users. What’s more, just because a test is positive for pot, that doesn’t mean that the individual was impaired at the time of the test. People typically can test positive for the drug for up to a week after use.
These rulings should prompt employers to reconsider their zero-tolerance policies in states where marijuana accommodation is required and, instead, focus on preventing pot use or impairment while working.
Marijuana Accommodation Best Practices
With these shifts in the law, the way forward is becoming less hazy for employers. Broad workplace changes to ensure compliance with weed legalization laws should include:
When it comes to accommodating workers, individual assessment is critical, said Dr. Todd Simo, HireRight’s chief medical officer. Dr. Simo spelled out some practical steps to address marijuana accommodation.
1. Ask the expert.
Research shows that even after a person who has smoked pot is no longer impaired, lasting effects continue from several hours to days after use. Pot users can have trouble determining distances, completing multiple tasks at the same time and making quick decisions, Simo noted. So not all jobs, particularly safety-sensitive ones, can accommodate marijuana use, even for medical reasons.
When a job candidate or employee is an approved medical marijuana user, they should inform the employer, Simo said. From there, employers may require that these individuals seek a written statement from their prescribing physician that clearly states they have reviewed the duties of the position in question and they believe the person can safely perform the tasks.
“That’s what an accommodation process should look like,” Simo said. “It’s really not a whole lot different than the accommodation process that employers go through for other qualifying ailments.”
2. Spot the impairment.
To address workers who may be impaired at work, companies must have workplace policies that spell out the circumstances that would prompt reasonable suspicion that a worker is high and mandate drug testing. Those rules also should lay out the specific consequences if the test result is positive and guide its equitable enforcement.
As part of this process, organizations must train managers and supervisors to spot “articulable observations” that a worker is high. That could include an individual who is acting in a disinhibited fashion, not following safety protocols or making bad decisions.
“All of these are signs of impairment,” Simo said. “And all of those are rightful triggers to launch a reasonable suspicion test whether there was an accident or injury or just somebody noticing a person doing it.”
When it comes to marijuana, plenty of organizations are still digesting the rapid shifts in rules and regulations. But as efforts to legalize weed continue to pick up speed across the country, it’s critical that employers act now to consider their own business needs and revise their policies accordingly.