Medical Marijuana in the Workplace: What's an Employer to Do?

Your Rights and Responsibilities When an Employee Takes Drugs

Posted by Timothy Dimoff in on August 14th, 2015

Medical marijuana is now legal in 29 states and Washington DC.

Therefore, it’s important to be familiar with the laws that have been passed in your state and devise a drug policy that takes into account state and federal laws.

With 94 per cent of Americans supporting medical marijuana, an overly restrictive policy may mean you lose good employees.

Marijuana, while still classified as a Schedule I drug without medical use, does have medical benefits, and a bipartisan bill to make medical marijuana legal on the federal level has been introduced in the Senate.


What Does This Mean for Your Business?

Legalized marijuana means new questions for business owners to ask themselves, including:

  • Should you tighten your policies on positive test results or do the reverse and loosen them?
  • If you choose to have a zero-tolerance policy, how do you handle employee recreational use that is permitted by law?
  • Can you look to federal law to justify a true zero-tolerance policy?
  • Can you be sued for failing to accommodate an employee who has a medical condition?


When Drug Use is a Safety Issue

With 86 per cent of Americans supporting medical marijuana, an overly restrictive policy may mean you lose good employees.
Although state laws vary, what is true in every state is that these laws don’t require employers to permit drug use in the workplace or tolerate employees who report to work under the influence.

Planning to conduct drug testing at work? Use our Employee Drug Test Consent Form template.

For multi-state employers it becomes even more confusing as Federal regulations still prohibit marijuana use. Federal Drug and Alcohol Testing Regulations state:

It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s regulations to use marijuana.

Safety‐sensitive transportation workers include:

  • Pilots
  • School bus drivers
  • Truck drivers
  • Train engineers
  • Subway operators
  • Aircraft maintenance personnel
  • Transit fire‐armed security personnel
  • Ship captains
  • Pipeline emergency response personnel
  • Others

In addition, the Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient.

And if your company is unionized, you may face issues on drug testing in a unionized workplace.


Protect Yourself and Your Employees

The Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for someone with a disability
How do you comply with state and federal laws and protect your employees and business?


Institute a Company Policy

First and most importantly, institute a company policy that clearly states your stance on the use of, the possession, or being under the influence of any illegal drug in the workplace.

Define ‘illegal drug’ as the abuse of over-the-counter medication, prescription medication, medical marijuana, and alcohol.


Know Your State’s Laws on Marijuana Use

Know the law and make sure your policies are consistent with state anti-discrimination statutes.


Comply with Federal Regulations

Keep up-to-date and make sure your company and policies are in compliance.


Be Clear and Comprehensive

Make sure your drug-use and drug-testing policies are clear regarding impairment, marijuana use outside of company time and drug testing.


Be Consistent

Be consistent in following your stated procedures, especially if you choose to ban all employee drug use or impairment.


Share the Policy and Raise Awareness

Communicate your policy to all employees and let them know what is expected of them and how you will deal with infractions.


Train Your Managers

Train supervisors and management about confidentiality relating to sensitive employee information—including drug-test results and requests for accommodations for medical conditions for which marijuana is prescribed.

Timothy Dimoff
Timothy Dimoff

President, SACS Consulting & Investigative Services

Timothy A. Dimoff, CPP, president of SACS Consulting & Investigative Services, Inc., is a speaker, trainer and author and a leading authority in high-risk workplace and human resource security and crime issues.
He is a Certified Protection Professional; a certified legal expert in corporate security procedures and training; a member of the Ohio and International Narcotic Associations; the Ohio and National Societies for Human Resource Managers; and the American Society for Industrial Security. He holds a B.S. in Sociology, with an emphasis in criminology, from Dennison University.

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