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The risk management implications of marijuana legalization

By Higginbotham on April 01 , 2020

drug test

At least 11 states and the District of Columbia have passed laws allowing recreational marijuana, and many other states have legalized medical marijuana. Despite this state-level legislation, marijuana remains illegal at the federal level. This has put many employers in a difficult position, caught between federal and state laws, and with the situation evolving rapidly. 

How Marijuana Legalization Complicates Matters 

Alcohol is legal for people age 21 and older, but this does not mean that employers have to tolerate workers showing up to work drunk or driving under the influence. However, there are some key differences to consider when it comes to marijuana 

Marijuana is often used for medical purposes, which complicates employment matters. Further complicating the issue is the fact that it may be difficult to determine whether marijuana usage occurred on duty or off duty, especially when employers rely on urine tests. People can test positive for marijuana days or even weeks after usage. An employer may test a worker immediately following an incident, but a positive result does not necessarily indicate that the worker was under the influence of marijuana at the time of the incident.  

Rethinking Zero-Tolerance Drug Policies 

Some employers may assume that they are free to reject applicants or fire employees over marijuana use because the drug is still illegal on the federal level. However, this simplistic line of thinking may land employers in hot water.  

Many workers have sued after being denied employment or terminated due to marijuana use, and some have been successful. According to the National Law Review, recent court rulings, including one in Arizona, have sided with employees, and many state and local jurisdictions have passed anti-discrimination laws regarding marijuana use.  

According to Governing, Nevada is the first state to pass a law banning employers from refusing to hire applicants based on positive marijuana drug testing, although this does not apply to firefighters, EMTs or positions that receive federal funding. A similar law has been passed in New York City.   

Risk Management Best Practices 

  • Monitor legislative developments and court rulings in your state. This is still a developing issue, so it’s important to keep up with changes.

  • Create clear policies that are consistent with the laws in your state. A zero-tolerance drug policy may not be the way to go when it comes to marijuana.

  • Safety is still a priority. For example, even where marijuana is legal, driving under the influence of marijuana is NOT legal.
  • Consider the situation carefully before making employment decisions based on marijuana use. Such decisions could include rescinding an employment offer or terminating employment based on a drug test. Make sure your decisions are consistent with your company’s policies as well as state law, and consult with legal experts as needed.

If you need guidance or assistance with developing your company’s drug policy, contact Higginbotham’s HR Services team. 

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