Marijuana in the Workplace
Finished forgings cannot reach their intended markets without the labor of humans. Human issues related to employment and labor often steal attention away from the critical operations of the forge.
While workplace marijuana use may not always be on our minds, it can certainly affect operational safety, relations between different sectors of the workforce and other factors. As more states legalize marijuana for medical or recreational purposes, employers continue to struggle with how to address this issue. Consequently, writing and communicating a clear and consistent marijuana policy is a valuable tool even before you have an actual need for one.
As of this writing, there are marijuana (or cannabis) laws in 46 states permitting some level of marijuana use even though marijuana remains illegal under federal law. The federal government regulates drugs through the Controlled Substances Act (21 U.S.C. § 811), which does not recognize the difference between medical and recreational use of marijuana. These laws are generally applied only against persons who possess, cultivate or distribute large quantities of marijuana, so don’t be surprised to read that some people openly grow, sell and consume small quantities of marijuana products.
Employers must be prepared for the fact that it is now much easier to obtain marijuana – and in new forms such as oils, creams, brownies, etc. How are employers supposed to know what products may be laced with marijuana? This information can be difficult to ascertain, but employers should be more mindful of indicators of an employee’s influence under marijuana and other drugs.
Despite federal statutes banning the possession, cultivation and distribution of marijuana, many states have enacted medical and recreational use statutes. Furthermore, statutes in Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York and Rhode Island provide some employee protections from discrimination primarily on the basis of being a medical marijuana cardholder or for testing positive for marijuana during a drug test.
Additionally, the Massachusetts Supreme Court recently ruled that employers may need to accommodate off-duty medical marijuana use in certain situations; New York has a similar policy. This can mean that if an employee in one of these states is using marijuana with a medical marijuana card, employers likely cannot terminate their job on that basis. However, if an employee is using marijuana recreationally, the employee’s job would likely not be similarly protected. Rulings vary from state-to-state, so it is best to consult your attorney in the state(s) where your business is located.
In the majority of states, including California, employers do not have to make accommodations even for off-duty medicinal use. The current case law in California makes that clear, but the law could evolve as attitudes regarding marijuana use change over time. The underlying issue is that a medical marijuana cardholder may have an independently qualifying medical condition. Therefore, employers may want to engage in an interactive process even if it is not required by law.
It is important to know that law enforcement officials may prosecute medical marijuana patients, even if they grow their own medicine and even if they reside in a state where medical marijuana use is protected. The U.S. Supreme Court indicated in the 2005 ruling of Gonzales v. Raich that Congress and the Food and Drug Administration should work to resolve this issue. The Raich decision does not say that the laws of any medical marijuana state are unconstitutional nor does it invalidate them in any way. Decisions about prosecution are still left to the discretion of the federal government.
When developing a marijuana and drug-use policy, keep in mind that many employers regard recreational marijuana use just as they would recreational alcohol use, with the additional understanding that marijuana remains illegal under federal law. Certainly, many workplaces already apply a drug-free workplace policy. If you don’t, perhaps it is time to consider one.
Employers do not have to tolerate on-the-job intoxication even if a worker is legally using marijuana for medical reasons, so accommodations might include time off or a leave of absence for when the worker needs to use the drug. Workplace policies should clearly state that employees cannot be drunk, high or otherwise impaired while at work.