What Employers Need To Know About Evolving Medical Marijuana Laws In The U.S. – Health & Safety

The laws around medical marijuana are changing, almost on a
weekly basis. It’s interesting to see the trajectory that the
law has taken on the state and federal level in the last five
years. And it appears that as a country, we may be on the precipice
of big federal change.

The number of questions we get about marijuana has dramatically
increased in the last few years, especially after the pandemic. As
people deal with mental health issues, many are turning to medical
marijuana, and it’s becoming more and more legalized.

First, however, it’s important to address a few myths about
medical marijuana.

1. Medical marijuana is legal nationwide.
False. Medical marijuana is still a
Schedule I drug
. This means the drug is still illegal
federally. On the state level, we have a patchwork of laws in place
that vary from state to state.

2. An employer must accommodate the use of medical
marijuana in a state where it is legal.
Not necessarily.
Because of the way our federal system works, there are states
enacting their own laws that have various degrees of protection for
the use of medical marijuana. But just because it’s legal in a
certain state does not mean it’s legal for someone to use it in
the workplace.

3. There is no protection for use of marijuana in the
workplace because it is illegal federally.
It’s not
that simple. On the other side of the coin, some states do protect
the use of medical marijuana in the workplace. For a while the law
was black and white, but since states started enacting protections,
coverage and protections have become a matrix that needs to be
navigated state to state, often with the assistance of legal
counsel.

4. An employer can take adverse action based on a
positive drug test for marijuana without consequence.
It
depends. It is a myth that drug tests for marijuana are accurate
indicators of intoxication. And state laws surrounding positive
drug tests are in flux.

The Current State of Marijuana Regulation

As employers and HR professionals, it’s important to think
about where your company aligns on this issue, especially given
shifting public sentiments and policies.

As of the 2022 Mid-Term Elections, 21 states and D.C. have
passed recreational marijuana laws. Thirty-seven states and D.C.
have comprehensive medical marijuana laws.

Additionally, a 2021 Pew Research survey found that
except for individuals age 75 and older, the majority of all age
groups favor marijuana legalization for medical and recreational
use. Only 8% of U.S. adults say marijuana should not be legal at
all.

This is important because much of your workforce likely falls
under an age group that shares this sentiment. Employers need to be
aware of the opinions of their workforce, especially given the
current labor crunch.

Last year, we started to see bipartisan federal effort to
address reform in the medical marijuana space. At a November 2022
hearing by the House Oversight Subcommittee on Civil Rights and
Civil Liberties, one of the key themes was reforming the federal
treatment of marijuana akin to how alcohol is regulated on a
federal level. Later that month, the Senate unanimously passed a
bill to expand medical marijuana research. This would give research
institutions authority and permission that they’ve lacked in
the past to research and have scientifically backed data on medical
usage.

We anticipate that sometime this year, the country will see a
major federal shift in the ways marijuana is regulated.

Navigating Marijuana Laws in the Workplace

Still, as an employer, navigating medical marijuana use today
can be challenging. Of course, it is still prohibited under federal
law. But adverse action could be considered workplace
discrimination given the evolving state laws surrounding marijuana
and medical marijuana use. It’s a fine line, and policies
change from state to state.

Five years ago, an employer could likely have terminated an
employee under their drug-free policy for testing positive for
marijuana. Today, they need to proceed with more caution. Employers
should ask themselves if they are terminating an employee because
of the positive drug test or because they are using medical
marijuana to treat their chronic anxiety and depression, which are
covered disabilities. Underlying disabilities are protected by the
ADA.

Employers may be able to take adverse action if their position
is governed by the Department of Transportation. DOT’s Medical Marijuana Notice
makes it clear that marijuana in all forms remains illegal.

Another clear prohibition is that most states do not permit
being impaired and under the influence at the workplace. This
includes states that have marijuana protections. Individuals may be
able to take medical marijuana off duty and off-site, but that does
not mean they can show up to work intoxicated.

Still, there are other gray areas. For instance, states still do
not provide guidance on the amount of marijuana consumed to be
considered intoxicated. And there are state laws that address the
unreliability of drug tests. These states explicitly say a positive
drug test for marijuana is not an indication of intoxication.
Employers have to look at objectively measured symptoms, like
slurred speech, dizziness, erratic behavior or lack of balance to
determine intoxication.

For these reasons and others, now is an important time to
reconsider your company’s drug testing and drug-free policies.
When looking at your policies, consider these questions:

  • Is this position a federally regulated role?

  • Is the position safety sensitive?

  • Does the employer receive federal funding, and is it subject to
    the Drug Free Workplace Policy?

  • Does the employer need to do pre-employment testing for
    marijuana, or can the employer limit it to reasonable suspicion or
    post-accident?

Today’s drug testing policies need to be flexible,
especially considering marijuana, as the laws continue to
evolve.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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