Human Resources Management – MGT 611

Sources:

Curtis, Laura and Silverthorn, Leah, November 2019, “Medical Marijuana in the Workplace”,
Retrieved from:
https://advocacy.calchamber.com/policy/issues/medical-marijuana-in-the-workplace/

Bauchner, Joshua and D’Artiglio, Anthony, April 3, 2019, “Managing Medical Marijuana in the
Workplace”,
Retrieved from:
https://www.greenentrepreneur.com/article/331541?_ga=2.2695156.519292165.1575230856-
867466935.1575230856
HR Article #2-“Managing Medical Marijuana in the Workplace

Cannabis is becoming a hot topic for HR professionals and there is a need to have company
policies that are in line with current laws and regulations pertaining to cannabis use. A major
problem with the issue is that cannabis is illegal under federal law but is increasingly becoming
legal at the state level. Laws vary from state to state creating another layer of problems, and there
is a movement to geographically expand both medical marijuana usage and recreational marijuana
usage. States with medical marijuana programs have been viewing users under disability laws and
providing them protection. Employers who take adverse actions against employees with medical
marijuana user status may face litigation. According to CalChamber Advocacy, “employers in
California maintain the right to drug test employees for marijuana and other drugs in certain
circumstances—including pre-employment—…Efforts have been afoot to prohibit employers
from declining to hire or terminate medical marijuana users, as well as to mandate workplace
polices that allow the use of medical marijuana on an employee’s own time.” This would be in
line with current policies on alcohol and prescription drug use, where employees are generally able
to use them on their own time, as long as they are not intoxicated or impaired during work hours.
A recent case against Wal-Mart in federal District Court found that an employee with a medical
marijuana card could not be fired for merely having marijuana metabolites in her urine (indicating
past use, but not necessarily current impairment). This was an interpretation of the Arizona
Medical Marijuana Act. This case has showed that employers would need to demonstrate that an
employee was affected at work in order to use a positive test against an employee.
It’s important to note that any protections for employees in regard to marijuana use only apply
in the case of medical usage, not recreational usage-even in states like California where
recreational usage has been legalized. The decisions to date do not provide protection in
circumstances in which an employee is found to be in possession of cannabis, uses cannabis at
work, or is impaired at the workplace. Employees found to be using marijuana during work hours
or working while impaired are still subject to appropriate discipline outlined for the conduct.
Employers are not required to accommodate the use of medical marijuana on site during work
hours at this time, however, they may be liable for discriminating against use outside of the
workplace.
Currently, despite usage being lawful for both medical and recreational, employers in California
can have drug-free workplaces and can test pre-employment, with suspicion of impairment, or
post-accident. Unfortunately, CalChamber points out that “There currently is no objective and
legally recognized test an employer can administer or have administered by a testing company to
confirm impairment.” and argues that zero tolerance is the only policy that can prevent impairment
on the job. Other legal cases such as one in Massachusetts found that medical marijuana users
who do not use during work hours have protection. Rhode Island courts found that prospective
employees who are medical marijuana card holders cannot be denied employment for failing a pre-
employment drug test for cannabis. Employers are advised to avoid liability from zero-tolerance
policies and focus on policies against impairment to avoid conflict with state medical marijuana
programs.
On the positive side, states that have implemented medical marijuana programs have seen an
approximately 10% decrease sick leave usage and absenteeism compared to states with more
restrictive laws. Companies are advised to revisit these issues frequently, as the laws are changing
and could have an impact on hiring and retention of employees.