Medical marijuana laws make doing business more costly and difficult because it attempts to expand protected classes of individuals to medical marijuana card holders. The laws put employers in an untenable bind—employers who want to maintain their drug-free workplace policies and standards will become easy targets for litigators representing medical marijuana card-carriers who will push their case for discrimination. Alternatively, if employees don’t keep their workplace safe and free of drugs, they will be subject to liability suits from on-the-job accidents.
With more people using marijuana in the state, the pool of drug-free applicants will steadily decline and the safety in workplaces will be compromised. With increased numbers of medical marijuana users in the workplace, if employers are going to meet their obligations to their employees, they will have to strengthen their drug-free workplace policies, make them enforceable, and remain vigilant of new developments in the law.
Marijuana has devastating social, economic, and physical consequences. Marijuana intoxication worsens neurocognitive performance—meaning that both naïve and chronic users show defects in memory, verbal fluency, attention, learning, perception of time, and sensory perception. These negative effects can last for days or weeks after the acute effects of the drug wear off. Consequently, some who smoke marijuana daily may be functioning at a reduced intellectual level most or all of the time. Several studies have linked workers’ marijuana smoking with increased absences, tardiness, accidents, workers’ compensation claims, and job turnover.
Every employer’s duty is to protect their employees from harm. Employers, then, should be vigilant for any legal infringement on their right to have a safe, drug-free workplace. To this end, we recommend that conscientious employers adopt a zero-tolerance policy. The need for drug-testing cannot be emphasized enough, because, despite the legalization of medical and/or recreational use of marijuana, marijuana itself remains an illegal Schedule I drug under federal law. Pre-employment screening, along with random drug testing or for-cause testing, especially for safety-sensitive positions, are options employers can use to protect their employees from injury. Employers should also carefully review their drug testing policies, or have them reviewed, to make their zero-tolerance policy absolutely clear.
The Occupational Safety and Health Act (1970)
Although several states have passed laws legalizing the medical use of marijuana, state laws do not change the fact that marijuana is still classified as a Schedule I substance—it is still illegal, dangerous, and does not have any recognized medical uses under federal law. State laws, therefore, cannot force employers to tolerate marijuana use, medical or otherwise. Employers do not have to accommodate its use, nor do they have to refrain from disciplining employees found to be using marijuana. For example, in Ross v. Ragingwire Telecommunications, Inc., the Supreme Court of California concluded that an employee was not unlawfully fired when he failed a drug test and that his employer had no call to accommodate his medical marijuana use.
Legal precedent is on employers’ side—state Supreme Court cases in California, Montana, Oregon, and Washington have ruled that as long as federal law prohibits the use of marijuana for medical reasons, the states cannot actually legalize marijuana use and therefore cannot oblige employers to tolerate use.