On June 24th, 2015, Elizabeth Milito, Senior Executive Counsel for the NFIB Small Business Legal Center, led a webinar entitled “Marijuana in the workplace: Strategies for Breaking Through the Haze.” The webinar provided an insightful history of marijuana regulation in America, an overview of different categories of state and federal laws, and recommendations for businesses operating in states with liberalized marijuana restrictions.
At present, 24 states and the District of Columbia have legalized possession, use, and—in some cases—cultivation of marijuana for medicinal purposes. Recreational marijuana use has been legalized in four states, as well as the District of Columbia.
Although States have legalized various uses of Marijuana, the Federal government has not legalized marijuana in any way. As a result, physicians are not able to prescribe marijuana because of its classification as a Schedule I narcotic under the Controlled Substances Act (CSA).
Intersection of State and Federal law
In August of 2013, Attorney General Holder announced that the Department of Justice would not challenge legalization efforts. Nonetheless, marijuana’s classification under the CSA is still relevant to other statutes.
Under the Federal Drug Free Workplace Act federal contractors, and grant recipients of $100,000 or more, must maintain drug free work environments. Additionally, the Department of Transportation requires drivers to be drug tested.
Of the 24 state laws which decimalize marijuana in some form, all laws fall into two categories: (1) states that decriminalize marijuana from state law prosecution, and (2) states that decriminalize the use of marijuana and provide employment protections for users.
We have yet to see many cases testing these issues, but one thing is clear: state laws are void if they conflict with federal law. Further, just as with alcohol, employers in all 50 states and the District of Columbia are permitted to restrict possession and use of marijuana at work, and can prohibit employees from reporting to work impaired or under the influence.
Wrongful Termination and the Colorado Supreme Court Decision on Coats v. DISH Network
Recently the Colorado Supreme Court decided an important case. In Coates v. DISH Network, Colorado’s high court held that employers may continue to enforce zero tolerance drug policies—despite Colorado’s legalization of medicinal marijuana. This means that—at least in Colorado—employers cannot be sued for wrongful termination of an employee who violates a company’s drug policies. This is good news for employers elsewhere because the decision will likely be influential as other courts wrestle with this issue.
Employers do not have to accept employees coming to work under the influence of drugs or alcohol. And some employers must be extra careful to maintain drug free work places for safety reasons, or to maintain federal contracts.
Employers should update their drug testing policies, with one of the three recommended options: (1) no drug testing, (2) reasonable suspicion or post-accident testing, or (3) random drug testing. Additionally, employers should: (1) understand their state’s marijuana law(s); (2) adopt a drug-free workplace policy; (3) update employee job descriptions that are safety sensitive; and (4) let employees know their stance on medical and recreational marijuana use.
For additional guidance on how to prepare an employee handbook discussing these issues, check out NFIB Legal Center’s Model Employee Handbook. It’s free!