As of June 2017, 29 states and DC have passed legislation that permits use of marijuana for medical or recreational use. Although the Drug Enforcement Administration (DEA) continues to classify marijuana as a Schedule I drug, a growing number of states have been moving to decriminalize its possession and use. For employers, this rapidly changing legal landscape presents challenges at several levels.

Federal Stance on Marijuana

The U.S. Federal government lists marijuana as a Schedule I drug. Schedule I drugs are considered to have no accepted medical use and a high potential for abuse. Other drugs in this category are heroin, LSD, Ecstasy, methaqualone, and peyote. Historically, the government has regulated substances for taxation, going back to the Harrison Narcotic Act of 1914. In 1970, in an attempt to thwart the growing drug counterculture, Congress passed the Controlled Substances Act, which included stiff penalties for possession, cultivation, distribution, transport, or sale of illegal substances.

Backlash Against Regulation and Rise of Medical Use

Over time, the idea of medical uses of marijuana because more widely accepted. Physicians and patients lobbied at the state level to have access to the active ingredient in marijuana, THC, as it is believed that it that can reduce pain, control seizures, and improve vision. Starting in 1996, with a move by California, some states have allowed for use of THC for specific medical conditions, although in many cases the specific forms of THC allowed are tightly restricted and vary widely from state to state. However, physicians in any state where marijuana has been approved are not able to prescribe THC for their patients due to federal regulations; they may only write a recommendation for its use.

Common and well-documented reasons for medical marijuana use include:

• Nausea and side effects of chemotherapy
• Severe seizures
• Crohn’s disease
• Intractable (constant) pain
• Muscle spasms
• Glaucoma

Statutes that allow medical or recreational use of marijuana can result in legal burdens for employers, even though marijuana advocates insist that compromising safety or job performance was never their intention. (Learn more in "Medical Marijuana Use and Concerns in the Workplace".) Regardless of state law, marijuana is illegal at the federal level and companies are not obligated to permit its use. However, judges in states where medical use is permitted are challenging that idea with rulings to the contrary that must now move up the appeals process chain, leaving employers caught between federal and state laws.

What the Legal Changes Mean for Employers

Employers must constantly monitor the legal landscape in the states where they do business. Employees can easily seek legal action and possibly change the law. A different argument in front of a different judge can result in a different outcome.

Case law has generally shown that employers have a right to fire an employee who tests positive for marijuana, even if the employee is using it for medical purposes. In the 2015 case of Coats v. Dish Network, the Colorado Supreme Court ruled that the plaintiff (a quadriplegic and registered medical marijuana patient) could be terminated because he broke federal law.

However, in July 2017, the Massachusetts Supreme Judicial Court ruled that Massachusetts companies may not terminate a worker using medical marijuana. After an employee with Crohn’s disease was fired for a positive marijuana result, the court stated, “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” The employee may now file a handicap discrimination lawsuit and request the use of medical marijuana as an accommodation through the reasonable accommodation policies under the American Disabilities Act (ADA).

Any company that performs drug screening, or has a Drug-Free Workplace program should have policies in place regarding the outcomes of a positive drug screen. Effective policies should include:

1. The reason for the Drug & Alcohol Abuse Prevention policy (Learn more in "The Importance of a Good Drug and Alcohol Policy in the Workplace".)
2. Conditions and situations for performing drug testing
3. Specific expectations of employees
4. Consequences for policy violations

DOT Concerns

For companies with U.S. Department of Transportation (DOT) contracts or grants, there is zero tolerance regarding the use of marijuana, regardless of state law. (Learn more in "Medical Marijuana Law Differences and Contradictions".) Any job that the DOT identifies as safety-sensitive is subject to workplace drug and alcohol testing, including: (Learn more in "8 Things Employers Should Know About DOT Drug and Alcohol Testing".)

• Federal Aviation Administration (FAA): Flight crews, flight attendants, air traffic controllers, aircraft maintenance personnel, and ground security coordinators.
• Federal Motor Carrier Safety Administration (FMCSA): Commercial Motor Carriers who hire drivers with a Commercial Drivers License (CDL), have vehicles over 26,001 pounds, or operate a vehicle that transports 16 or more passengers.
• United States Coast Guard (USCG): All crew members operating a commercial vessel.
• Pipeline & Hazardous Materials Safety Administration (PHMSA): Pipeline employees involved in operations, maintenance, and emergency response.
• Federal Railroad Administration (FRA): Any personnel with Hours of Service Act, engine and train, signal service, or train dispatchers.
• Federal Transit Administration (FTA): Vehicle operators, controllers, mechanics, and armed security.

With shifting attitudes and legislation regarding marijuana, there is a clear need for employers to establish clear policies regarding its use. Unlike the other substances in a standard 5-Screen Drug Panel (Cocaine, Opioids, Amphetamines, and PCP), marijuana/THC is becoming decriminalized, as well as proving to have valid medical uses.

Employer Actions to Protect Against Marijuana Use Issues

To avoid unnecessary litigation regarding marijuana, particularly medical marijuana use, employers should do the following:

• Know your state laws. If you do business in more than one state, know the legislation for each state. Make use of employment attorneys and Human Resources experts.
• Update substance abuse and testing policies to include state law, as well as how the policies will change with ongoing legislation and court decisions.
• Provide and document education to all employees regarding marijuana use. If your state allows for its recreational use, employees may assume that they can use marijuana away from the job. Make sure employees understand the company’s expectations.
• Be certain that supervisors and managers receive specific training regarding marijuana, including how to deal with employees with positive marijuana screens and employees who disclose use of medical marijuana.
• If an employee is a medical marijuana patient, seek legal advice before proceeding. The employee may have a disability that already requires ADA accommodation. The disability may be the reason for using medical marijuana.

The most important thing an employer can do is to directly address the use of marijuana and its impact on the workplace. Be specific in policies and monitor the changes. Keep staff informed and educated, to avoid expensive lawsuits and costly mistakes.