No matter where your personal convictions fall in the legalized marijuana debate, what we have right now is a potential legal mess for many employers.

At this writing, 29 states and the District of Columbia have passed laws decriminalizing recreational marijuana use or legalizing medical marijuana use (Figure 1). Many others are or have considered a change to their laws.

Under federal law, marijuana is still a Schedule 1 drug, the same as heroin and peyote. If you have a contract with a federal agency, you are bound by the Drug-Free Workplace Act (DFWA) and must have a policy that prohibits the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance by employees in their workplace as a condition of employment.

For employers not bound by the DFWA, employers still have a conflict of federal versus state laws to navigate. If you allow employees to work in your business, and one of them harms a customer or hits someone while driving a company vehicle, and you have knowledge your employee is using a controlled substance, you risk being a third party to a lawsuit.

At the same time, if you do not hire an employee because they reveal they are taking a prescription drug or medical marijuana, you may be sued by an employee for violations of the Americans with Disabilities Act (ADA) because you did not make reasonable accommodations for the employee.

So what is an employer to do? While we can’t address state-specific rules regarding employment of those who use marijuana, and we recommend you have a discussion with your attorney about any changes to your dairy’s policies, we can suggest some things that may help put you in a stronger legal position.

The first thing to consider is: Do I need a substance abuse policy? While most employers will say they want a drug-free workplace, is it necessary for every position in your company?

In the agriculture industry, most jobs involve the use of heavy equipment or handling animals, which require total control of your faculties. The same is true for over-the-road truck drivers.

Once you establish you need a policy, and for agricultural-related jobs one is highly recommended, do you do a pre-hire testing? Again, you may have to show relevance for such testing but, for this article, we will assume all positions require a drug-free employee. You cannot do the test until you have made an offer of employment contingent upon their passing the test.

Next, your policy should have a clearly defined set of rules that prohibit the use, distribution and possession of controlled substances while at the work site or while on company time. For this policy to be effective, you must enforce it for every situation equally.

For example, this means you cannot bring a couple of beers onto company property to drink with your workers at the end of their shift. This would violate your own policy.

Some phrases that may be helpful in your policy include:

• “Notify your employer immediately if you are prescribed any substance for a medical condition that may affect your ability to do your job safely and completely.”

You do not want to know why the employee has to take the drug, but you do need to know if it will affect their ability to work. You may have to engage in a conversation with the employee to see if you can or will need to alter their job to provide a reasonable accommodation to this new medical issue. ADA prescribes the situations that may require accommodations.

• “Must be able to fulfill essential job function in a consistent state of alertness and safe manner.”

Please note the verbiage “under the influence” is not the same as “impairment.” One thing rock and roll has shown us is: A performer can be under a lot of “medications” and still give a great performance, so they are not “impaired” in that manner.

At the same time, we would not want the person driving a school bus, regardless of how “in control” they may seem to be.

Most states have a .08 or 1.0 breath alcohol standard for measuring impairment. However, at this time, there is no legal level for the amount of THC (one of 400 chemicals in marijuana) that must be found in the bloodstream for one to be considered impaired.

All of this leads to the question of what to do with an employee prescribed legal medical marijuana.

For example, let’s say you have an employee who tells you they have a medical marijuana card. If you test them, it will show THC in their blood. What now?

You have to consider several factors. If you have already ruled the employee is in a job that requires a drug-free employee for safety reasons, and you adhere to your policy, and the employee was aware of the policy, then you may be able to release the employee.

But you need to make sure you make every reasonable attempt to modify that employee’s work or place him or her in a position where the use of medicinal marijuana would not be an issue.

As an employer, you must be very careful not to ask too many questions when an employee tells you they have been prescribed medical marijuana. Aside from HIPPA laws, you can legally find out your employee has a disability that falls under the ADA or a similar status protected by state statute.

The ADA requires you make accommodations related to covered disabilities (for example, glaucoma) and provides certain protections for such employees.

Up until recently, the courts, including the Supreme Court of Colorado, had supported employers against discrimination claims when they fired an employee for having THC in their system at work. However, in July, we got a different decision out of Massachusetts’ highest state court.

Companies in Massachusetts cannot fire employees who have a prescription for medical marijuana simply because they use the drug.

Massachusetts Chief Justice Gants wrote, “The use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.”

Antidiscrimination laws require companies to attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ, such as exploring alternative medications or allowing use of the drug only outside of work hours.

As with most new laws, there are a lot of unintended consequences that will need to work their way through the court systems before we have some clear direction. This was one reason many opposed these new laws – because when the laws were passed they were not clear and did not provide protections for employers.

The clear path for employers right now is to not jump immediately to termination. Make sure your substance abuse policy is up-to-date, communicated to all employees and is flexible enough to accommodate new rulings or situations.

Talk to the employee if marijuana use is an issue and discuss what can be done before an employee tests positive. Consult an attorney and listen to his or her advice. If you are in a state that has legalized marijuana in some form, stay informed of what is happening in your state. Ask questions of your state representatives. It’s likely if you don’t understand, they may not either.

Ultimately, this human resource issue will work its way to the federal court system, and we will see where it goes from there. Just don’t put yourself in line to be a test case until these are resolved.  

Jeff Schanbacher is director of operations for HR Mobile Services; the company has offices in California and Arizona. The company specializes in loss prevention, safety training and human resource compliance for small businesses. They have dairy clients in 15 states.