Not so many years ago employers emphasized the importance of drug-free workplace policies—policies that often included zero-tolerance provisions. But as marijuana laws have undergone significant change in recent years, it’s time to give a second look to policies that may not have been updated in years. 
Peter Lowe, an attorney with Brann & Isaacson in Lewiston, Maine, reminds employers that marijuana is still illegal under federal law even though 28 states have passed laws making medical marijuana legal and eight states as well as the District of Columbia have made recreational marijuana legal.
Lowe says those legal changes need to be taken into consideration as employers develop and revise policies, especially in states like his, where voters decided last fall to allow the possession and use of marijuana by people 21 and older. As in many states with laws making at least some marijuana use legal, the Maine law spells out that employers are not required to “permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace.”
The law goes on to say it “does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees.” And it doesn’t affect an employer’s ability “to discipline employees who are under the influence of marijuana in the workplace.”
Setting policy
So how should employers in states allowing marijuana use set policy? Lowe advises explicitly addressing both medical and recreational marijuana in a policy. For example, he says almost all states allow an employer to forbid both use and possession of marijuana in the workplace.
One of the big issues for workplace policymakers is defining “illegal drug use,” Lowe says. “I am recommending that policies specify ‘illegal under either federal or state law.’” Such a statement gives employers more latitude for addressing marijuana in the workplace.
Zero-tolerance provisions carry risks in some states, Lowe says. “For example, here in Maine our marijuana laws (medical and recreational) state that an employer may not refuse to hire an applicant solely because of their outside-of-work marijuana use. This type of statutory language does create some conflicts with zero-tolerance policies.”
Federal, state law complications
The situation for employers in states where federal and state law disagree creates complications. “The fact that almost all of the activities permitted under state marijuana laws (sale, cultivation, and use) are crimes under federal law creates a dichotomy for many employers,” Lowe says. “Employers expect that their employees’ conduct must comply with federal and state law. Yet in the marijuana context they are diametrically opposed.”
Another complicating factor is the “cloud of uncertainty hanging over the issue because of (U.S.) Attorney General (Jeff) Sessions’ staunch opposition to marijuana,” Lowe says.
Sessions has been outspoken against the marijuana legalization trend. “I reject the idea that America will be a better place if marijuana is sold in every corner store,” Sessions said in a speech in Richmond, Virginia, in March. “And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana—so people can trade one life-wrecking dependency for another that’s only slightly less awful.”
But Lowe says the uncertainty over whether such statements from Sessions might signal tougher enforcement against marijuana doesn’t mean employers should hold off on adopting new policies.
Policy pointers
In a January article for Maine Employment Law Letter, Lowe made suggestions for employers that are considering revising policies that simply state that employees may not work while “impaired” or “under the influence.”
- Defining the term “illegal drugs.” Since marijuana is illegal under federal law but legal in some states, he suggests “stipulating that an employee may not use or possess at work any drugs that are illegal under either federal or state law.”
- A policy that focuses only on illegal drugs may be too narrow when it comes to prohibiting employees from working while they’re impaired, Lowe says. “You might want to state in your policy that no employee should work while he’s impaired by any substance, including legally prescribed drugs and alcohol,” he wrote in the article.
- Lowe also suggests defining what is meant by “impairment” and how supervisors may observe and document impairment. “My recommendation is that the definition include a list of the signs of impairment (e.g., behavior, odor, or gait) and explain that a person who is impaired lacks the capacity to work safely,” he wrote.
- Lowe says to have the policy identify what supervisors should do to get an impaired employee home safely.
- A policy also should address drug testing if employees are required to undergo drug tests, Lowe says.
- In states where medical and/or recreational marijuana is legal, policy provisions to consider include prohibiting the use of marijuana at work; prohibiting the possession of marijuana at work; and stating that an employee may be disciplined for being under the influence of marijuana at work, Lowe wrote.
- In addition, employers in legal marijuana states may want to address fitness-for-duty issues and specify that the employer may require a fitness-for-duty evaluation in some circumstances.
Need to learn more? Join us at the 22nd annual Advanced Employment Issues Symposium where Peter Lowe will present Medical and Recreational Marijuana: How to Navigate a Shifting Legal Landscape and Enforcement Gray Areas Concerning Employee Pot Use. In the session, Lowe will discuss where pot is legal—and under what conditions—and where legislation is pending to legalize marijuana; what Attorney General Jeff Sessions and the Trump Administration are likely to do to enforce federal drug laws like the Controlled Substances Act, which lists marijuana as a Schedule I drug along with heroin, LSD, and other potent drugs; the lattice of laws that come into play when marijuana is used for medical purposes, including the Americans with Disabilities Act (ADA) and state laws on drug testing employees and applicants; the enforceability of zero-tolerance and drug free policies; tips for federal contractors to ensure they don’t lose federal funding; and including conduct-based expectations in the employee handbook. For more information, click here.