Employers in many states are now grappling with what to do about marijuana and their employees. Although information is becoming available on how best to handle employees who use medical marijuana, the jury is still out on what to do with recreational users. As long as marijuana remains illegal at the federal level, problems will continue to abound.
States with medical marijuana programs seem to be offering protection under that state’s disability laws to employees who are patients in the state’s medical marijuana program. Employers in these states who have harsh drug testing policies will likely have to change to accommodate medical marijuana users.
A recent case involving Walmart in Arizona points to which way the wind is blowing on this subject. An employee who had been a medical marijuana cardholder for five years and who only smoked before bed, never at or before work, could not suffer adverse employment action from Walmart merely based on the presence of marijuana detected in her drug test. Walmart needed to prove, instead, through expert testimony, that the employee was actually impaired at work and unable to perform her job duties because of the marijuana, which is a substantially higher burden to meet.
Similarly, in Rhode Island, prospective employees who hold medical marijuana cards cannot be denied employment if they would fail a pre-employment drug test.
The takeaway for employers operating in multiple states: keep your drug testing policies loose in the event they need to accommodate a wide variety of employees. Ask employees who use medical marijuana to refrain from using at the workplace or close enough to the start of his/her shift that work might be impaired. And make sure that all of your employment and drug testing policies comply with state laws.