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In 2013, Colorado and Washington became the first states to legalizethe possession of small amounts of marijuana. Twenty other states have legalized marijuana to be used for medicalpurposes with 18 additional states anticipating some level of legalization inthe Fall 2014 elections.
Colorado is the first state to enact recreational marijuana legislation. Washington will begin opening their marijuanastores later in the year. Many eyes areon Colorado to see how marijuana impacts their economy, violence and otherissues. But truly the big question is –as employers, what does it mean?
To make itsimple.......Employers are not required to accommodate an employee's use of illegaldrugs, including marijuana...
The Federal Government's Position
Last August,the U.S. Department of Justice announced an update to its federal lawenforcement policy concerning state legalization of marijuana. The Departmentof Justice confirmed that marijuana is still illegal under federal law and thatprosecutors will continue to aggressively enforce the federal drug laws. This means that individuals who choose tocreate large grow operations are still targets.
Presently, theDepartment of Justice has decided that they are not going to challenge thestates that've legalized marijuana as long as they have strict policies ofenforcement and regulation.
When recently questionedabout legalization of marijuana by the New Yorker, President Obama said that hefelt pot was no more dangerous than alcohol. "It's important for it to go forward because it's important for societynot to have a situation in which a large portion of people have at one time oranother broken the law and only a select few get punished," he said.
Presently,marijuana distribution, possession and use still remain illegal under federallaw. Congress is the only government body who can legalize marijuana on thefederal level. But as a capitalisticcountry, remember if the tobacco companies and pharmaceutical company's developan interest in the marijuana industry, we could begin to see a large push bytheir lobby to legalize it at the federal level. Additional change will also come into play asmore states move to legalize marijuana.
Do Employers Have to Allow for Medical MarijuanaUse Under the American's with Disability Act?
AbsolutelyNot. Employers are not required to accommodatean employee's current use of illegal drugs, including marijuana. Moreover,under ADA, an employer can prohibit the illegal use of drugs (includingmarijuana) in their employee handbooks and policies.
Can States Regulate Marijuana Possessionand Use by Their Employees?
Absolutely. As more and more states regulate the varyinguse of marijuana, the laws in these states are beginning to become more andmore similar. However, for the most partall states seem to fall within the same rules.
If an employerhas a strong no drug and alcohol policy, they can enforce a drug free workenvironment. We encourage employers toenforce a drug and alcohol policy uniformly and not target employees fortesting because it seems they may be high.
Therefore, enforcementwill come in the form of random drug testing. Some states vary on the ability to random drug test after hire, unlesssomeone drives for their employer. Otherstates have the ability to allow for "reasonable suspicion" testing. Of course the biggest challenge is that,today, a drug test can only tell an employer that someone has consumed or beenaround someone who has consumed THC. Itdoesn't tell you when. And that is wherethe challenge for employers is going to lie – when can employers project theirrules on an employee's personal time? Drug companies are working diligently oncoming up with tests that can be more accurate in the usage and it isanticipated we will begin to see those within the next three years.
How Should Employers Regulate Marijuana Use bytheir Employees?
Employers canstill have "zero tolerance" drug policy. It is important for employers to review substance abuse policies to confirmlimits and restrictions concerning illegal drug use to include "recreational"and or "medical marijuana" depending on state legalization levels.
Pre-employment,post-accident and reasonable suspicion drug testing, are certainly allowed, aslong as the employer is complying with all applicable federal, state and locallaws concerning drug testing.
Employersshould make the time to educate their employees concerning the employer's view ofan employee's legal right to use marijuana versus the employer's expectationsconcerning marijuana use.