Varying Medical Marijuana Regulations Create Complexities for Drug-Free Workplace Policies

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When an organization addresses medical marijuana in its drug-free workplace policy, it must carefully consider both state and federal regulations. However, regulations vary widely from state to state and often state regulations directly contradict federal law which makes addressing medical marijuana in a drug-free workplace policy complex.

Additionally, employers that have workers in multiple states or operate in a federally regulated industry, face further challenges in including medical marijuana in their drug-free workplace policy.

Today, 16 states allow medical marijuana usage and about a dozen more states have pending legislation regarding its usage. Each state law contains varying restrictions around when marijuana may be used, how it can be obtained, and how much a person can purchase and possess. Some states even have regulations that protect medical marijuana users from employment discrimination.

In order to help mitigate safety, legal and regulatory risks, it is vital for employers to carefully consider how it will address medical marijuana in its drug-free workplace policy. Below are some of the differences between state and federal regulations that may impact an employer’s drug screening program.

1. Illegal Federal Status
Under the Controlled Substances Act, marijuana remains a Schedule I classified drug. This means that even if a state decriminalizes medical marijuana usage, the federal government still considers the possession, prescription or use of the drug as illegal.

In 2009, the Department of Justice (DOJ) issued guidelines to help federal prosecutors handle cases in states with medical marijuana legislation. The guidelines indicated that while marijuana is considered a dangerous drug, individuals with serious illnesses who use it as part of a recommended treatment regimen and comply with existing state law will not be a target for prosecution. There is very little additional recent federal guidance on this issue.

2. Varying State Laws
Medical marijuana laws vary widely from state to state. Some states only allow physicians to recommend the drug for critical illnesses, while other states allow more widespread application of the drug. For each state, there are different regulations regarding how much marijuana patients can purchase and possess at one time.

In some states that allow medical marijuana use, if an employee is visibly impaired at work, the employee may be terminated. In other states such as Arizona and Delaware, non-federally regulated workers who use medical marijuana are protected and cannot be discharged solely on the basis of a non-negative drug screening, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

3. Zero Tolerance for Federally Regulated Workers
Federal agencies such as the Department of Transportation (DOT) and the U.S. Department of Health and Human Services (HHS) trump state medical marijuana legislation in certain circumstances. Organizations with federal contracts under DOT or HHS, must prohibit medical marijuana usage in the workplace. An organization that fails to enforce federal agency mandates risks incurring costly fines and risks losing its lucrative federal contracts altogether.

Although the DOT and HHS regulations are clear, it is recommended that employers, especially those in states with medical marijuana laws, reiterate their zero-tolerance approach within a written company drug policy.

The variations between state and federal medical marijuana laws further indicate a need for employers to create an effective drug-free workplace policy. When developing a workplace drug policy, an organization should consider all existing and pending state and federal legislation that affects an organization.

Currently even more changes to medical marijuana laws are working their way through state legislators. Is your organization’s medical marijuana policy up-to-date with current and pending legislation?

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HireRight is a leading provider of on-demand employment background checks, drug and health screening, and electronic Form I-9 and E-Verify solutions that help employers automate, manage and control background screening and related programs.

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