By Stephanie Carr • April 29, 2019•Writers in Residence, Careers, Firms and the Private Sector
Waiting for the Smoke to Clear
Reconciling Workplace Drug Policies and Cannabis Laws While Uncertainty Rages
My first post addressed the differences and respective legal status of marijuana and hemp to serve as a primer for the material covered in this blog. In this second post I will begin an in-depth look into a clear area of opportunity: cannabis-related employment law.
Employers need legal guidance to reconcile their workplace drug policies and procedures in the face of shifting state and federal laws regarding marijuana and hemp. Unfortunately, this task is easier said than done given the divergence of legal precedent. As with most areas of cannabis law, attorneys should review specific state laws with a high degree scrutiny, monitor state and federal trends, and anticipate how progressive changes in federal law could impact employers. The following general and specific considerations will assist attorneys hired to modify or create an employer’s drug policies and procedures.
Workplace drug policies should account for antidiscrimination protections stemming from state law. Some states include cannabis-related employment protections in their marijuana legalization statutes, while others defer to court decisions. Relevant state law should be reviewed and compared with the employer’s policy to confirm compliance.
Employers in states where recreational and/or medicinal marijuana is legal should consider whether their policies are congruent with approved state usage and anticipate preemption issues. For example, if an employee uses medical marijuana in a state where it’s legal but her employer fires her after she screens positive for marijuana during a random drug test, can the employee assert protection under state law? It depends. Courts have reached different conclusions about whether federal law, which prohibits marijuana, preempts state law protections. Employers should be aware of both their state’s position and jurisdictional trends.
Employers also should consider how future shifts in federal law may expose them to liability. If marijuana is legalized federally but a company maintains an anti-marijuana policy with no exceptions for medical usage, the company could face disability discrimination charges. In anticipation of future changes, depending on an employer's category under the various regulations, it is worth considering what defenses or options they may have based on their exposure or the employment positions at issue.
Employers also should consider that the recent removal of hemp from the controlled-substances list and the growing use of CBD products will likely increase usage among their employees – which means increased legal exposure for employers as discussed below.
Drug Testing and Screening
Many employers require drug screening for job applicants or they may randomly test employees – especially employees in positions that carry any inherent risk or danger. On April 11, 2019, a new analysis by Quest Diagnostics revealed that American workers testing positive in workplace drug tests reached a 14-year high last year, fueled by increased marijuana usage in nearly all workforce categories. The analysis was based on consideration of more than 10 million workplace drug tests, and showed that marijuana continued to top the list of the most commonly detected illicit substances across all U.S. workforce categories, while opiate, cocaine and heroin positivity all declined.
Given the uptick in marijuana usage as well as the increased popularity of CBD products, employers should take a fresh look at how they will test employees and react to test results.
Specific considerations for drug testing and screening policies should include:
- Was the employee tested for all cannabinoids or only for THC? If tested for all cannabinoids, a person could test positive if they used marijuana or if they used a non-intoxicating CBD hemp product. Employers should consider their position on usage of CBD hemp products; should quality candidates or employees be dismissed for use of a product that doesn’t get them “high”? They also should be prepared to address employees who claim their positive cannabinoid tests resulted from the use of legal hemp, not from marijuana.
- What is the THC limit for the drug screen? Industrial hemp has no more than 0.3% of THC on a dry weight basis, which likely would not trigger a positive response on drug tests with standard limits. But if the test level is low or if employees (1) used excessive amounts of hemp products or (2) unknowingly used products that have more than 0.3% of THC, the employees could conceivably test positive even though they honestly believed they were using legal products at an appropriate THC level. Employers should consider these scenarios in determining what level they will screen for and how they will react to disputes from employees.
- If an employee or applicant tests positive for CBD or THC, was it related to a medically prescribed product? If so, firing or refusing to hire that person could trigger a claim for disability discrimination. If the employer is in a state that covers medical marijuana patients under disability, it should confirm whether the positive test was connected to medicinal use before making employment decisions.
Although marijuana still is illegal under federal law, recent debates have surged about whether medicinal marijuana use should be covered and accommodated under the Americans with Disabilities Act (ADA). Under the ADA, disability discrimination occurs when an employer or covered entity treats a qualified employee or applicant unfavorably because he/she has a disability. The law requires an employer to provide reasonable accommodation to an employee or applicant with a disability unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
To avoid disability discrimination claims, employers should consider the following:
- Does the employee/applicant have a disability as defined by the law? In addition to standards established by the ADA, the ability to counteract the employee’s impairment with non-cannabis prescription medication may factor into whether the state considers it a disability.
- Does the state’s law address the duty to accommodate medical marijuana? Some states have held that their discrimination statute did not require employers to accommodate illegal drug use.
- Where does the employee use marijuana? In addressing disability discrimination claims courts have considered whether the cannabis use is off-site and whether the individual needs to use cannabis during work day.
These are important questions for employers to ask before making employment decisions, and they should factor into an employer’s policy. In states where recreational marijuana is legal, employers should consider whether their policies make exceptions for after-hours use. In states where medical marijuana is legal, employers should consider whether their policies make exceptions for prescribed cannabis or for individuals with a disability who choose to use cannabis to treat their disability.
Exceptions might be made for employees in certain safety-sensitive or federally regulated positions. Employers should be prepared to identify and defend why cannabis use isn’t appropriate for certain types of employment, if that’s the position they choose to maintain.