Current Legality Status
As of the publish date of this blog post, recreational marijuana use has been legalized in California, Oregon, Washington, Alaska, Colorado, Washington D.C., Nevada, Maine, and Massachusetts. Medical marijuana has been legalized in many additional states.
The good news for employers concerned about their right to limit marijuana entering their workplace is that zero tolerance policies for marijuana are still allowable and enforceable. Additionally, employers are not required to accommodate an employee working under the influence of marijuana, even if they have a prescription and/or medical marijuana card.
OSHA implemented a new rule around post-accident drug screening effective December 1, 2016. The rule prohibits an employer from requiring an employee to take a drug test after a workplace accident unless drug use is likely to have contributed to the accident and the actual drug test is capable of determine actual impairment rather than how recently the substance was used.
The key to being able to effectively enforce your expectations is to draft and communicate a carefully worded policy reviewed by an employment attorney. When constructing your policy, be sure to take your workplace risk and company values & philosophy into consideration.
Trends We’ve Noticed
At Xenium, we support our clients with the full gamut of policies and practices. Length may vary, some policies are a couple short paragraphs and others up to 4 pages long.
Given the legalization of recreational marijuana, our region’s liberal leanings, and that fact that substance tests for marijuana may result positive even if the individual is not impaired at the time of the test, we are receiving more and more requests for flexible policies that allow more wiggle room for employer enforcement. Here’s how you can make your policy slightly more flexible or specific to your expectations:
- State that any detectable amount is a violation
- Clearly define “drugs” and “intoxicants”, including requirements for prescription use
- Include a “Last Chance Option”
- Require Limited Testing by discontinuing random testing, pre-employment testing, post-accident testing, and/or remove marijuana from the test panel, like alcohol
- State that refusal to submit to a test request is grounds for termination
Breaking it Down & Putting it into Action
As mentioned above, the first step is having a carefully worded policy that reflects your values and industry. Next, clearly communicate the policy to employees. Ensure employees fully understand that the recreational use of marijuana could consequentially cost them their job if that is, in fact, the reality. It’s important to be very clear on this point, as some employees may have the misconception that because it is legal it can’t and won’t impact their job.
If an employee tests positive for marijuana, be prepared to consult with a Medical Review Officer to determine amount and possible frequency of use based on the test results. This can factor into your decision around how to enforce your policy and/or exercise the Last Chance Option. Most critically, while you may evaluate policy violations on a case by case basis, make sure you take consistent action based on past, similarly-situated circumstances.
On the Horizon
More and more states are looking to legalize medical and/or recreational marijuana. Additionally, in Oregon, a recent bill introduced in the senate would prohibit off-site use of marijuana from being a factor in a decision to terminate or choose to not hire someone.