Marijuana in the Workplace

By Drew M. Smith

March 2015 Volume 1 Article 5

Lost in the shuffle of the 2014 mid-term elections was the fact that some states had a very important piece of legislation on the ballots. The State of Oregon and the District of Colombia became the third and fourth state governments, joining Washington and Colorado, to legalize commercial marijuana use for those above the age of 21. Alaska also approved the measure within the last week to become the fifth different state government to legalize the drug. This measure is starting to gain traction as more states are starting to reconsider the usage of a drug that was once seen as illegal. In addition to the above states, 21 other states have medical marijuana laws on their books.¹

This creates a large problem for employers in these states as they don’t know what to do regarding their companies’ drug use policies. If they are in a state that allows the medical or the recreational use of marijuana can they still enforce drug testing and discipline employees if they fail tests due to marijuana. With more states allowing commercial usage this becomes hard to enforce because they may not be able to do anything unless the employee shows up to work impaired similar to a DUI.

One comfort to the employers is that it is not legal at the federal level, only at the respective state levels. This means if you receive federal funding, or have to abide by federal regulations such as the delivery or airline business it is still considered a banned substance under the Drug-Free Workplace Act which regulates federal organizations and those with federal grants to promote drug free environment in the workplace.² But for those who don’t, there is little they can do to prevent the usage outside of the workplace.

For employers, there are some steps they can take to at least moderate the possible damage. One is to keep up with the drug testing. Just because marijuana is legal does not mean other drugs like heroin are. The second thing is to review your drug policy and pay special attention to the clause concerning marijuana. You should consult with your attorney to develop policies to your company.<sup>3

1</sup>http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
²http://www.dol.gov/elaws/asp/drugfree/require.htm
³http://www.forbes.com/sites/groupthink/2014/09/30/how-marijuana-legislation-will-affect-drug-testing-in-the-workplace/

About Axis Insurance Services, LLC

Axis Insurance Services, LLC (AIS) is a licensed professional liability insurance broker located in Franklin Lakes, NJ with agents licensed nationwide. They offer access to high-quality insurance products in the areas of Errors and Omissions insurance (E&O), Directors and Officers liability insurance (D&O), Crime, Fiduciary, and Privacy/Network security coverage for today’s professional service firms. AIS works with all company types including commercial real estate firms, real estate agents and brokers, property managers, insurance agents, medical groups, practice managers, third party administrators, lawyers, accountants, architects, engineers and many others.
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Please note that the above information does not constitute any legal advice. You should consult your attorney prior to implementing any employment related policies and procedures for your company.