Marijuana Invading your Employment Law Policies?

Trisha Barita April 5, 2013

A new survey released by the Pew Institute shows that for the first time in four decades of polling, the majority of Americans (52%) are in favor of legalizing the use of marijuana.  As of the writing of this article, eighteen states have legalized some form of pot as shown in Rolling Stone’s Nifty Pot Map of the United States.  So as these states invite marijuana into the “cool kids” club of legality for either medical or recreational use, I have been considering how this will affect the many policies and laws that already exist for business and government regarding marijuana in each of those states.

Most specifically, I thought of the employers who spent hours crafting drug policies, drug testing procedures and safety policies in their employee handbooks only to realize that many of those policies will need to hit the trash can or be heavily revised to ensure that they are in line with the legal use of marijuana by their employees.  As far as general safety policies and drug policies, employers will likely be able to restrict the use of marijuana on their property and at work because it is an impairment like alcohol.  Although determining if an employee is under the influence at work could be an issue because marijuana users could test positive for up to a month after using the drug.  Therefore, a postitive drug test of marijuana will not necessarily indicate that the employee is under the influence at the time they are at work and will not be a definitive indicator of impairment.

Depending on the way the state writes the law, some employers will need to be wary of requesting whether an employee has a medical marijuana card.  The medical illness as to why an employee has a medical marijuana card  could be protected under the Americans with Disabilites Act (ADA).  If an inproper inquiry is made, this could give rise to ADA discrimination claims from an employee based on their illness.  These are just some of the issues facing employers as they navigate these new marijuana laws.

Although the Federal Government has not legalized marijuana, many people see the legalization of marijuana as inevitable as the post-iceberg hit Titantic slowly sinking into the night.  For those proponents, its 18 states check yes to marijuana, 32 to go.

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