April 27, 2022
Marijuana or cannabis use remains illegal under federal law. Marijuana is a Schedule I substance under the Controlled Substances Act. Drugs on Schedule I have no currently recognized medical use under federal law and are said to have a high substance abuse potential. Under federal rules, employers are free to fire workers who test positive for marijuana’s presence. Employers can cover marijuana in their drug-free workplace policies, drug test for the substance and apply zero-tolerance rules for the recreational use of marijuana.
But that’s not the end of the story. Unfortunately for employers, a growing number of states have decriminalized cannabis, removed it from their own prohibited drug schedules, and even in some cases decriminalized the use of recreational marijuana. Legalization legislation has now been passed in 37 states, making it essential that employers develop use-of-cannabis policies individualized to each workplace location. What’s worse, some employers have been sued under state laws that provide workplace protection for employees who use state-prescribed medical marijuana. It makes for a confusing patchwork of employment laws and interferes with an employer’s right to control what happens on an employer’s premises.
So, how does the patchwork of laws impact different employers? Let’s take a look.
Employers with federal contracts
Federal contractors and grant recipients who receive federal funding must maintain drug-free workplaces under the Drug Free Workplace Act (DFWA). The law prohibits using controlled substances in the workplace. Because marijuana is a Schedule I controlled substance, it can’t be used at work. Unfortunately, there is currently no test that clearly determines whether a worker is under the influence of cannabis — the active ingredient remains in the system long after its effect on the user. A federal contractor or grant recipient who uncovers positive test results in medical marijuana users will not know whether the employee is under the influence currently or has used the drug off-premises outside regular work hours. If the usage was legal under state law, the employer has to choose between following federal law or state law.
Get clarity on how to manage the complex maze of questions related to marijuana and the workplace.
The increased public acceptance of marijuana use combined with an explosion in new state laws on the issue are leading to a complicated maze of employer questions related to policies, drug testing, safety, and accommodations.
Establish workplace policies & testing procedures for other drugs
Federal transportation laws
Employers governed by the U.S. Department of Transportation (DOT) rules must comply with those rules without regard to state marijuana laws. They must continue to drug test commercial truck drivers. A person is not physically qualified to drive under federal rules if he or she uses any Schedule I controlled substance such as marijuana. Thus, a positive drug test for recreational cannabis legal under a state recreational marijuana law would bar a truck driver from driving. The same would be true for use of medical marijuana legal under a state medical marijuana law.
Medical versus recreational marijuana laws
State labor laws governing cannabis usage fall into two categories — those that legalize medical marijuana usage and those that legalize recreational use of marijuana. Some states have legalized both. State legislatures have responded to public pleas for deregulation and decriminalization that have grown louder over the years.
Advocates argue that pre-employment drug testing — especially for what they view as having low substance abuse potential — screens out prospective employees for drug use that doesn’t affect the employee’s performance or create impairment. Job applicants, or so the argument goes, should not be punished for the use of a drug that they deem harmless or helpful for the treatment of some medical conditions without other effective treatments. They see the federal government’s inclusion of cannabis on Schedule 1 as harmful overreach.
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