Many businesses enforce a zero-tolerance policy to drug use in order to create a safe and productive work environment. However, conflicting state and federal laws on the issue of medical marijuana are creating a challenge for employers. Although an individual business may have clear policies in place, the legality of an employer’s disciplinary actions is being brought into question, with no clear resolution thus far.
Coats v. Dish Network is a case demonstrating this conflict. Brandon Coats, who had been paralyzed in a car accident, received a prescription for medical marijuana to help with his medical issues – a perfectly legal action in Colorado, but illegal by federal law. Dish Network has a zero-tolerance policy to drug use. When Coats failed a random workplace drug test in 2010, he was fired (despite his good employment record and never working while under the influence). Coats sued, and the case is still continuing as the court navigates conflicting state and federal law regarding marijuana use and anti-discriminatory laws.
The recent boom in states legalizing the use of medical marijuana is slowing working its way through the courts in legal cases. Hopefully, rulings will be made with precedents that can clarify employer’s and employee’s responsibility. But until then, here are a few tips to help your workplace and employees, from CPA Practice Advisor:
1. Look at the company’s specific situation
Companies in some industries, such as those regulated by the U.S. Department of Transportation, must maintain a zero-tolerance approach to marijuana use. Others with federal contracts also must abide by the laws that treat marijuana as an illegal drug.
The laws in individual states should be carefully reviewed. Companies in states that allow recreational marijuana use face different considerations than those where marijuana is completely illegal.
2. Review and update company policies
Since so many states now allow, or are considering allowing, marijuana usage, employers should take the opportunity to review their current drug and testing policies and update them if necessary. This is particularly important when companies have offices in states that specifically provide employment protections for those with prescriptions for marijuana.
For some companies, it may make sense to eliminate random drug testing completely and focus on developing procedures for addressing situations when employees appear impaired or cannot fulfill their job responsibilities. Unlike alcohol and some drugs, marijuana can stay in the system for a long time. So workers who fail drug tests often try to argue that their marijuana use took place weeks ago and far away from their jobs.
Before making any changes to policies, companies should involve a cross-functional team that involves in-house counsel, outside attorneys, and Human Resources. This will ensure that policies are legal, defensible, and workable.
3. Regularly train and educate
Whatever approach they adopt, companies need to clearly convey their views on drug usage to their managers, supervisors, and employees. Employees should be regularly educated about the company’s drug and testing policies. Managers and supervisors must be trained on how to recognize and respond when they suspect workers are using illegal drugs or are otherwise impaired at work.
4. Proceed carefully when disciplining employees
Once a worker violates the company’s drug policy through marijuana use, the company must not rush to fire or discipline the employee. In some states, failing a drug test alone is not sufficient grounds for termination. The employer may need to prove that the employee was using marijuana at work or was impaired. The company should have a clear process in place for addressing these situations. Every step must be carefully documented to provide evidence in case employees decide to challenge the termination.
These cases have been going on for several years, and they may continue several more years to come. While the United States works towards developing clear, unified and consistent laws regarding marijuana, employers need to seek good counsel from experts to help them determine legal drug policies and procedures. Read more on this subject at CPA Practice Advisor.
