Last updated : November 11, 2024
Twenty-four states and Washington, D.C. have legalized medical marijuana. Four states—Alaska, Colorado, Washington, and Oregon, as well as D.C.—have legalized recreational pot. If you live in one of those areas, you may believe your employees are protected at all times, in all places. That would be a mistake.
Even in states where medical and/or recreational weed is legal, every state prohibits use in public places and on federal land. What’s more, no matter where you live, the employer still has the right to ban marijuana from the workplace.
First of all, Uncle Sam still classifies marijuana as an illegal, dangerous, Schedule 1 drug, despite what various states may say.
In addition to that, there are plenty of good reasons a company might want to prohibit the drug—just as businesses prohibit employee use of alcohol, which is also legal. Furthermore, think about this: Most of the reasons employers cite for barring pot are reasons that directly affect your employees’ wellbeing, a fact you can stress to frame a drug testing program in a favorable light.
Employers will want to consider the fact that today’s pot is almost three times more potent that it was, say, in the late 1970s, so its effects are much more pronounced. Those effects, which can negatively impact coworkers who don’t use, include:
- diminished concentration
- flawed judgment
- decreased awareness
- diminished reaction time
- lower productivity
- an increased tendency to make mistakes
- increased absenteeism
Needless to say, these characteristics are not conducive to maintaining a safe, productive, happy workplace, and the statistics bear that out. Did you know, for example …
- 40 percent of workplace fatalities can be linked to substance abuse, including use of marijuana?
- employers who institute drug testing have seen a 51 percent reduction in workplace accidents?
- workplaces with drug testing policies in place tend to be 30 percent more productive?
- marijuana users tend to be absent from work 78 percent more than nonusers?
As far as medical marijuana is concerned, employees definitely have the right to use it in states where it’s been legalized, but the courts have ruled that right only protects users from criminal prosecution, not company drug-testing programs. Although some workers may believe they’re protected by the Americans with Disabilities Act, which directs employers to provide accommodations for disabled employees, the right to accommodations hasn’t been legally extended to individuals who use pot prescribed to help them deal with their disabilities. That situation is unlikely to change, as long as marijuana is illegal under federal law.
The fact that employees may be using recreational or medical pot at home and not on the job offers no protection, either, since the drug can remain in the system for up to 3 days, longer for frequent users, resulting in a positive drug screening after the fact.
Bottom line, employers located in states where marijuana is legal for medical and/or recreational use are still legally entitled to test for the substance and take action based on positive results. However, in order to be legally protected, employers should familiarize themselves with Department of Labor guidelines and state statutes. They also want to make sure drug-testing protocols—including test schedules, substances to be included in the test panel, and potential consequences for positive test results—are well-documented, fair and unbiased, and clearly understood by every employee.
