In November, voters approved controversial initiatives in California, Nevada, Massachusetts and Maine legalizing recreational use of marijuana. This comes on the heels of similar initiatives in Colorado, Washington, Oregon and Alaska. In addition, 20 states and the District of Columbia now allow for use of medical marijuana—including three states that approved initiatives (Florida, Arkansas and North Dakota) last fall. Business Insider provides a full map here. In any event, we might expect this map to transform further in the coming years, especially if the Trump Administration continues Obama’s general policy of non-interference with state marijuana laws.
What does this changing regulatory landscape mean for employers?
Not surprisingly, we are seeing cases in many of these jurisdictions raising new and novel questions as to whether employers can continue to enforce a zero-tolerance drug policy. So far, courts’ responses have been uniform: legalization of marijuana at the state level does not take away an employer’s right to enforce a zero-tolerance drug policy.
Under the U.S. Constitution federal law is supreme over state law. The Supreme Court has already made clear that the federal prohibition on marijuana remains in place without regard to state enactments “legalizing” the drug. For this reason, no state can enact law affirmatively contravening or frustrating federal law in this area.
Following up on this principle, NFIB has argued in three amicus briefs that any state law that seeks to force employers to accommodate an employee’s drug habit is invalid on its face. Such a law would be preempted by federal law, which recognizes the employers right to take corrective action—including termination—for employees abusing drugs. The Americans with Disabilities Act requires employers to make reasonable accommodations for employees with life impairing disabilities; however, use of marijuana is not a “reasonable accommodation.”
Several state courts have considered and rejected arguments that employers should allow for medical marijuana accommodations. In one high profile case, the Colorado Supreme Court ruled that legalization under Colorado law did not affect the right of an employer to terminate an employee who tested positive for drug use—notwithstanding the fact that the employee had a medical marijuana card.
The Supreme Judicial Court of Massachusetts is now set to decide a case raising this issue. And once again NFIB Small Business Legal Center weighed-in with an amicus brief to protect small business interests.
Why does this issue matter to small business?
There are many reasons why small business owners may want to enforce a zero-tolerance drug policy. First and foremost, drug free policies help ensure a safe and healthy work environment. Especially for employees working with heavy machinery or who may be encounter any sort of danger in the workplace, its essential for employers to be able to take corrective action if they have reason to believe an employee may be under the influence of alcohol, marijuana or any other mind altering substance. This is vital not only for avoiding workplace accidents, but also for minimizing potential liabilities. Moreover, any business working on federal projects is required by law to maintain a drug free workplace, which would place employers in an impossible situation if state-law inhibited their prerogative to test employees for drug use and or to take corrective action.
Of course, the argument on the other side of the equation is always that employees should be allowed to do as they like during their personal time, if they are performing their work competently on the clock. But, the trouble is that there is no way to test for “off-duty” use. Whereas a breathalyzer test measures current blood-alcohol content, there is no equivalent test for marijuana use. In other words, it’s impossible to really know whether an employee is using marijuana only on his or her private time, or whether the employee is imbibing near or during worktime.
For that matter, there is no statutorily defined level of acceptable intoxication in the workplace. Accordingly, it’s not practical to tell employers that they can only prohibit use of marijuana during working hours. For these reasons, such a rule would effectively inhibit employers from maintaining a safe and drug free work environment.
What action should employers take?
This may be a good time to update or clarify your company policies. NFIB Legal Center offers a free Model Employee Handbook. Also, we offer further guidance on how to approach these thorny issues in this webinar: “Zero Tolerance Pot Policy is OK.”