No firing for lighting up? Cannabis in the workplace
As we move into a new decade, employers are faced with an increasingly complex and evolving legal landscape regarding cannabis use. While cannabis is a Schedule I substance under the federal Controlled Substance Act (CSA), many state and local legislatures have not only legalized it but have adopted workplace protections for lawful users. This leaves many employers holding their breath as they try to balance their workforces’ locally sanctioned lawful use of cannabis, not only with federal sanctions but with associated workplace risks.
In contrast to just a few years ago, many Americans can lawfully use cannabis under state or local law (even if it is still unlawful under federal law). Only a few states do not permit use of at least medical marijuana or related products. Indeed, 15 states and the District of Columbia already have either decriminalized or legalized recreational cannabis use; four of those – Arizona, Montana, South Dakota, and New Jersey – just legalized the possession and use of recreational marijuana in the most recent election.
For employers, this patchwork presents challenges for monitoring and responding to cannabis use in and around the workplace and the risks associated with same. Maybe the most pressing issue is how to appropriately address usage in the workplace while navigating anti-discrimination protections for workers who use cannabis and hemp products legally, pursuant to state and local law.
This issue is made more complicated by the difficulties in testing for intoxication: there is no breathalyzer equivalent, and drug tests pose problems because traces of THC may remain in an individual’s system for weeks after use. That is, determining employee impairment is often a guessing game.
Broadly, and recognizing that each law differs, legalization statutes at the state and local level typically permit employers to prohibit marijuana use or intoxication on their premises or during work hours: just as employees cannot drink alcohol while working, they cannot be high on the job. However, while impairment may be prohibited, a notable (and increasing) number of such jurisdictions prohibit discrimination against persons who lawfully use marijuana.
This creates a Catch-22 for employers: with no way to test for intoxication, an employer must either confront an employee who may be high and risk a discrimination claim, or else ignore the issue and risk potential safety and operational issues.
Confounding this, many localities limit or prohibit reliance on positive drug tests for marijuana in making employment decisions. For instance, in January 2020, Nevada’s blanket prohibition on pre-employment marijuana tests, the first of its kind among states, went into effect. Similarly, on the local level, beginning in May 2020, New York City banned employers from conducting pre-employment marijuana tests, while allowing a narrow carveout for safety and security sensitive jobs. Other states allow marijuana testing but prohibit terminating or rescinding a job offer based solely on a positive marijuana test. Practically speaking, these laws create potential discrimination claims whenever an applicant or employee who tests positive is denied a job or continued employment – even if the employer has legitimate concerns about drug usage.
Against this background, employers are placed in a difficult position, in which they must weigh their business interests and employee safety against the state and local law afforded rights of marijuana users and the risks of discrimination claims. These challenges are compounded by the technical inability to test for intoxication. Nor can employers expect to rely on the fact that marijuana is unlawful at the federal level as a defense: courts increasingly have rejected the theory that the CSA preempts anti-discrimination laws protecting marijuana uses. See, e.g., Noffsinger v. SSC Niantic Operating Co., 273 F. Supp. 3d 326 (D. Conn. 2017).
With this in mind, employers must be aware of relevant local jurisdictional law and ensure their policies and practices are updated accordingly. In addition, managers – particularly where employee and operational well-being is at issue – should be trained to proactively, tactfully identify and address safety and productivity risks. Likewise, while employers generally may prohibit unlawful substances in the workplace, they should be cognizant that, based on local law, they may need to accommodate medicinal users, such as by permitting cannabis on company premises (even if prohibiting its use). And finally, employers should routinely review the ever-changing legal landscape to ensure they are continuing to comply.