The recent upswing in the number of states that have decriminalized the use of marijuana for medicinal purposes has led many employers to question the impact such legislation will have on their workplace drug policies and related safety concerns.
According to Eugene A. Boyle and Judith Kong of the Chicago law firm of Neal Gerber & Eisenberg the liberalization laws do allow companies in many cases to keep their present drug policies.
They report that fortunately, many of the statutes have been drafted to allow employers to retain control over their policies and practices regarding medical marijuana use.
Boyle and Kong offer these questions and answers for business leaders:
How should employers address medical marijuana use by employees?
First, check the relevant state statutes. Many states’ medical marijuana laws, including those in Michigan and New Jersey, specifically provide that employers may prohibit the use of marijuana in the workplace and/or while performing job-related duties.
Illinois’ medical marijuana statute contains a provision expressly preserving an employer’s right to institute and enforce a drug-testing, zero-tolerance and/or drug-free workplace policy, as long as the policy is applied in a non-discriminatory manner.
Even if the law in your state does not contain such a provision, some courts have been sensitive to the conflicts medical marijuana causes for employers and reluctant to enforce permissive state laws. In Coats v. Dish Network, LLC (2013), an employee licensed to use marijuana under Colorado’s medical marijuana act alleged that his termination – for testing positive for marijuana in violation of his employer’s drug policy – violated a state statute prohibiting employers from discharging an individual for engaging in lawful, off-duty conduct. The Colorado Court of Appeals rejected the employee’s claim, despite the fact that the employee had used medical marijuana within the limits of his license and had never used marijuana on the employer’s premises or while performing work-related functions. The court held that in order to be deemed “lawful” within the meaning of the statute, the activity must be legal under federal and state law, and that smoking marijuana – which remains prohibited under federal law – did not qualify. The Coats case is currently under review by the Colorado Supreme Court.
Can employers still maintain policies prohibiting workplace drug use?
The short answer: yes. Employers may continue to maintain and enforce robust drug-free workplace policies, including by disciplining employees who test positive for marijuana use in violation of the policy and/or rejecting job applicants who fail initial drug screening. However, they will need to pay special attention to how such policies are drafted to ensure that they are both effective and compliant with the law. Employers should make sure that their drug-free workplace policies reference both federal and state law in defining prohibited conduct under the rules. Such policies can play an important role in insulating employers from liability when they take action against employees engaging in otherwise “lawful” conduct under state marijuana statutes. To the extent that any particular state has provided some degree of protection from employment discrimination for marijuana users, employers should tailor their policies to comply with the requirements of the law, and ensure that the rules – including any drug-testing procedures – are applied in a consistent manner and that known medical marijuana users are not being singled out. Finally, employers should take this opportunity to review – and if necessary, revise – their workplace safety policies, as well as standards of employee conduct and/or work performance. These provisions offer additional ammunition for employers to discipline employees for drug-related infractions at work in the event that the drug policy cannot be applied to a particular situation.
About the Authors
Eugene A. Boyle is a partner at the Chicago law firm of. He practices in the firm’s Labor & Employment group where he regularly advises employers with respect to the impact that employment laws and regulations have on particular business decisions or objectives, and helps devise strategies to achieve the stated objective.
Judith Kong is an associate at the Chicago law firm of Neal Gerber & Eisenberg. She practices in the firm’s Labor & Employment group where she advises clients on unemployment insurance, wage and hour disputes, and workplace discrimination.