An equipment industry client asked the following question: Can my employees use marijuana? If so, when, where, and what can I do about it? Generally: the answer depends largely on where and for whom you are working.
LEGALITY:
FEDERAL LAW: Marijuana use remains illegal at the federal level, but the U.S. Department of Justice recently reconfirmed that marijuana use is a low enforcement priority.
STATE LAW: Use of marijuana solely for medical purposes is now legal in the vast majority of states. Recreational use is legal in 23 states, the District of Columbia, Guam, the USVI and the Northern Mariana Islands.
CONFLICTS: Conflicts between federal and state laws can make it difficult to determine whether marijuana use should be permitted. For instance, even if your business operates entirely within a state that has legalized marijuana use, it remains prohibited on U.S. government projects and in other cases where U.S. federal law controls. Consider the following examples:
VEHICLE OPERATION: Both the U.S. Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA) heavily regulate CDL drivers who are classified as “safety- sensitive transportation employees.” Employees who operate commercial vehicles (26,001 lbs. or more) are not permitted to use marijuana under any circumstances. This is typically enforced via a combination of pre- operation, random, and post-accident drug testing and sanctions.
AMERICANS WITH DISABILITIES ACT (ADA): Although federal laws like the ADA permit the use of certain illegal drugs under the supervision of a licensed health care professional, courts have consistently ruled that marijuana use is not protected under the ADA where another prohibition (e.g., DOT or FMCSA rules) applies.
NOTE: Marijuana cannot be prescribed by a physician; it can only be recommended. A “medical marijuana card” is a physical representation of a physician’s recommendation for marijuana use.
DRUG TESTING: No comprehensive federal law regulates private sector drug testing, leaving states largely free to decide whether and when to permit it. At least 31 states have thus far done so. Some limit testing to cases involving “reasonable suspicion” or “probable cause.” Others authorize random testing in certain cases. Still others restrict public sector, but not private sector, employers. Separately, many states also carefully control the handling of specimens and the use of test results.
Obviously, this makes it critical to carefully review your state’s drug- testing laws before establishing a drug-testing policy, and certainly before engaging in any form of drug testing.
For those hoping to simplify the process, however, a grid of state drug-testing laws can be found on the ACLU’s website at www.aclu.org/ documents/state-state-workplace- drug-testing-laws
No state or law requires an employer to allow marijuana impairment while on duty.
In most cases, a positive drug test combined with a workplace incident, or a direct observation of impairment, constitutes sufficient cause for termination. Nevertheless, because state drug-testing and enforcement laws vary considerably, and because those laws tend to change frequently, employers are encouraged to consult with legal counsel prior to taking adverse employment action.
The wave of marijuana decriminalization sweeping the country has generated enormous confusion regarding what can and cannot be done by employers to protect their business, employees and equipment, not to mention the general public. Further complicating matters is the fact that the resulting lawsuits are only now starting to make their way through the courts. Consequently, to the extent guidance exists, it tends to be general and less than comprehensive.
Nonetheless, some general rules apply:
1) Remain informed about applicable state laws (they tend to differ substantially).
2) Review and update your drug- testing policy at least annually, as laws tend to change quickly and often.
3) Confirm all testing requirements by project, carefully documenting whether any federal or state mandates may apply.
4) Ensure that your drug-testing and enforcement policies are communicated to all employees in writing.
5) Make certain that your employee handbook doesn’t conflict with your updated drug-testing policy.
6) Educate employees on marijuana regulations and potential hazards associated with impairment, and reaffirm their understanding (in writing if possible) at least annually.
7) Consult counsel before taking adverse action against any employee.
JAMES WAITE LAW is a group of equipment industry lawyers providing legal services for manufacturers, dealers and lessors throughout the world. Our goal is to provide comprehensive support with respect to the unique legal issues faced by participants in each segment of the industry. Our deep knowledge, extensive experience and invaluable relationships worldwide enable us to facilitate transactions, protect our clients, avoid disputes and aggressively pursue resolutions.
