Legal Marijuana and Your Workplace: It’s Going to Get Complicated

[clear]How high is too high? For the longest time, the answer was easy: “Come to work high and you will be disciplined up to and including termination!” Now the landscape for Virginia workplaces is changing and those questions and answers are more complicated. Marijuana legalization is changing how we work and this is an issue we must confront.

Virginia has become the 16^th state to legalize non-medical, or recreational, marijuana use.  Governor Northam’s recent amendments to Senate Bill 1406 have been approved, meaning legalization will go into effect on July 1, 2021. Thirty-five states (including Virginia) already allow medical use. This legalization trend likely will continue and employers are wondering what it means for their workplaces.

Generally speaking, employers can and should still ban workplace intoxication and the use of intoxicants, including marijuana, in the workplace as a matter of workplace safety. However, other drug use policies might get more complicated. This will depend on your industry, business model, and state and local laws.

There is a lot to consider and employers need a place to start.

Review the federal rules affecting your industry or business model.

The federal Controlled Substances Act still names marijuana a Schedule I drug. While the White House could re-schedule it, formally de-scheduling or legalizing marijuana requires an act of Congress. If you work in certain industries, you may already be familiar with federal marijuana law and policies. For example, if you work in the shipping or mass transit sectors, you’re probably aware of the Department of Transportation’s drug and alcohol testing regime. If you’re not familiar with these laws, the good news is we are able to help.

All employers, no matter their industry, must pay attention to how existing employment laws interact with marijuana use. For example, under the Trump administration, OSHA reversed an earlier rule that complicated post-accident drug testing. The Drug Free Workplace Act allows workplace safety-focused drug-testing. Finally, the Americans with Disabilities Act doesn’t prohibit termination or discipline of current users of illegal intoxicants, but medical marijuana users (as long as their use is consistent with their prescriptions) are owed an interactive process for accommodation, which you should document well. Remember that as the Biden administration rolls out its agenda, federal rules could change.

Get familiar with state and local laws and review drug-related policies.

By and large state laws will be your guide. At the time of writing, only Idaho, Kansas, and Nebraska totally ban cannabis use in any form. Every other state allows at least CBD or low-THC use, if not medical marijuana or full adult-use legalization. Each state’s particular laws are different so multi-state employers will need multi-state policies.

In some states and localities, but not all, it is illegal for employers to reject applicants for failing a marijuana screen. Some states expressly ban discrimination against medical marijuana users. Others expressly allow termination for positive tests, regardless of the employee’s reason for using (prescription, off-duty, e.g.). The standard of proof needed to terminate an employee for marijuana use varies as well. Is one positive test enough? Not in every state. These common situations demonstrate how difficult it can be for employers to comply with the complex web of laws and regulations.

Plan for the future.

We will track new developments in this area as marijuana use becomes less taboo and your workers more vocal about their right to use it. As you change your policies to reflect new marijuana legislation, the Woods Rogers Labor & Employment team is ready to guide you.