Posted on / Updated on / in Blog & HR Compliance /

My favorite part of this year’s Emmy’s award show was when veteran comedian Bob Newhart read the list of nominees for Outstanding Comedy Series and cautioned, “Incidentally, if Weeds should win, it may take them a little longer to get up here.”

Taking their time doesn’t seem to bother those in favor of the legalization of marijuana. A slow but sure trail for the past fifteen years has made a dogged path on the road to legalization for medicinal marijuana use.  In 1973 less than 20% of Americans polled supported the legalization of marijuana; in 2008 the percentages in support were approaching 40%.  Of course, support of legalization doesn’t mean that it has become legal.  However, the past two presidential administrations did not acknowledge state medical marijuana laws because they contradicted – and were therefore nullified by – federal laws.  Current administration has taken a new approach by advising that that there would be no action taken – no federal drug raids or prosecutions – against individuals who were acting in compliance with their state’s medical marijuana laws.

Our goal here with this information is not to take a side one way or the other.   This can easily become a very heated topic, but regardless of what side of the fence you are on, if you are an employer, there are some significant issues you will be straddling regardless of your personal viewpoints. For instance, if your employee may legally use marijuana at home in the evenings to treat symptoms, will they still be affected by marijuana when they report to work at 6:00 am?  What if they are an on-call employee?

There is one case study of an individual who has a condition so severe he actually is one of four people who receives medical marijuana from the government.  300 cigarettes every 25 days.  Do the math on that, and you can be certain he must be smoking during working hours (he’s a VP of Sales -not in California, in Florida).  So, will medical conditions certifiable as disabilities under ADA that are treated with medical marijuana require employers accommodate employees by permitting them to ingest the marijuana during working hours?  Maybe – but a district court in the state of Washington determined that the ADA did not protect individuals currently engaging in illegal drug use, regardless of state laws.

How is this going to affect your drug testing program?  Will there be DOT requirement accommodations regarding employees’ prescribed medicinal marijuana?  What if an employee doesn’t tell you they are legally using marijuana and is then injured while operating equipment at work?  It’s hard to say where the rules are going to fall.  Federal law and state law are warring over this one, and we are all used to federal law pulling rank, but right now the feds are claiming to look the other way.  However, even within the states that are radically permitting the growth, distribution and use of medicinal marijuana, there is disagreement.  Currently Los Angeles, California has 168 Starbucks coffee shops and 186 registered marijuana dispensaries.  But in 2008, California’s highest court ruled that employees can be fired if they test positive for marijuana – even if the worker has a prescription for the drug allowed under state law.  So even the state that seems to be creating the model for legalization of the drug has not come to terms with how it is going to handle the implications it the workplace.

So, what do you need to do?  We recommend brushing up on your state’s laws and regulations in reference to the distribution and use of medicinal marijuana.  If the federal law is no longer going to trump whatever state laws have been put in place, it’s important to know specifically what loopholes may exist.  For most states, that loophole is not specifically defining what constitutes “medical use” or by broadly defining that the use is legal for conditions to which it “provides relief”. So learn what your state allows, and be certain to contact legal counsel if you do have an issue that arises with an employee who tests positive on a drug screen and claims medical marijuana necessity.  While you will still likely be secure in following your company policy in regard to discipline, a few extra measures will prevent your employee performance, safety and drug programs from going up in smoke.

Submitted by Paula Agee, SPHR; Senior Human Resources Consultant, IntegrityHR, Inc.

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Integrity HR's human resources blog is filled with expert advice (and sassy commentary) on those everyday employment issues that give business owners and managers HR headaches. From tips on how to retain key employees to how to write your dress code policy, our blog has all the HR resources you need.