Public confusion over the legality of marijuana for medical and recreational use bears careful attention, especially for multi-state employers.
The impact of the Trump election and conservative power shift in government has overshadowed the fact that seven more states approved marijuana legalization at some level in November.
Twenty-eight states and the District of Columbia now permit medical use of marijuana and eight states, plus D.C., allow recreational use of the drug that is still outlawed as a Schedule 1 substance under federal law. Early indications of the Trump administration, at least in comments by press secretary Sean Spicer, forecast a harder federal line against recreational pot but toleration of state efforts to allow medical use. Regardless, marijuana use is common and is culturally accepted by a large segment of the American workforce.
A key problem for employers is the common-sense notion of a drug-free workplace. While a no-tolerance policy may seem cut-and-dried, dangers abound when it comes to drug testing, particularly for pre-employment screening.
Attorney and leading marijuana law expert Kathryn Russo outlines several issues that employers should consider when crafting and enforcing drug policies in regard to marijuana:
- What are the laws in the states where my employees live and work
- The ADA and medical marijuana use
- Anti-discrimination protections under some state laws
- Separate policies for “safety-sensitive” employees
- Legal risks of pre-employment and random drug testing for marijuana
- The risks of becoming a test case in the evolving legal process