As Marijuana Legislation Sweeps the Country, Employment Laws Must Keep Up

Both Washington State and Colorado passed bills legalizing the recreational use of marijuana, and about half the states in the US now have legalized medical marijuana. However, federal law still states that marijuana is illegal, and the Drug-Free Workplace Act is unlikely to be changed anytime soon.

The disparity between state-level marijuana legislation and federal drug policy has created problems for employers and employees alike. For example, a Washington state resident was fired after he became the first person in the state to purchase marijuana at a newly-opened dispensary, and he appeared on television. Michael Boyer, a 30-year-old resident of Spokane, was ordered to take a drug test in 24 hours after his employers saw him on TV; Boyer refused the test, however, because he knew he would not pass.

Although Boyer now has his employment contract reinstated – the temp agency, TrueBlue Labor Ready stated that they believed he was scheduled to work that day, while Boyer said he had taken the day off and was therefore not intoxicated at work – the story points to a deeper problem in state-level marijuana legislation for employers: how should businesses handle drug tests for the workplace?

Part of the problem relates to the intoxicating chemical in marijuana – THC – which can stay in the blood stream for just over a month. Although employees may not be intoxicated at work, the compound will still show up on a drug test, which can cause the employee to be unjustly fired.

Further workplace issues come up in states that have not legalized recreational use of marijuana, but have passed bills allowing for medical marijuana use. Many medical marijuana users have chronic conditions, from anxiety to multiple sclerosis, and have tried other prescription medications that did not work as well. Several states have clauses preventing employers from discriminating against employees with medical marijuana cards, but at the federal level, the Americans with Disabilities Act does not require employers to honor medical marijuana use.

“Under the ADA, there is no obligation to accommodate marijuana use,” explains Danielle Urban, an employment attorney with the Fisher & Phillips law firm in Denver, “even if someone has a disability and a health care professional has said the employee might benefit from the medical use of marijuana. As an employer, you are free to have a zero-tolerance policy, with some exceptions, such as states like Arizona and Minnesota.”

Both Minnesota and Arizona, which have also faced problems regarding DUIs for medical marijuana patients, agree that as long as an employee is not intoxicated at the workplace, then businesses cannot regulate what the employee does at home. However, testing for intoxication is expensive.

“In order to get reimbursement through these [federal] contracts,” DMEC executive director Terri Rhodes said, “employers need to comply with the regulations and to maintain a drug-free workplace. If an employee does test positive for marijuana, and they do have a medical marijuana card in a state where that’s approved, employers have to deal with that issue.”

Computer-based assessment programs can help employers test their employees for potential impairment. However, Urban says, “These tests are fairly sophisticated and require having someone on staff who is properly trained to administer the test and evaluate results — and very few employers can really afford to have someone like that on staff.”

“If you had a martini on Saturday night, or smoked pot on Saturday night, but you’re fine on Monday morning, how is Saturday night the employer’s business?” says Deborah Keary, of the Society for Human Resource Management. “So I really think they’re going to have to change the way they do testing and define impairment.”

If You Face Marijuana Charges, Including Drug Charges for Medical Marijuana Use, The Strom Law Firm Can Help

If you or a loved one have been found with medical marijuana, you could face criminal charges ranging from misdemeanor to felony, depending on how much marijuana was in your possession, and what your intent was with the drug. The drug crimes attorneys at the Strom Law Firm can help. We offer free, confidential consultations to discuss the facts of your case. Contact us today for help. 803.252.4800