Nearly half of U.S. states allow for some legal usage of marijuana, generally under a doctor’s supervision. Yet, the federal government still considers marijuana an illegal drug. According to the White House’s Office of National Drug Control Policy, “It is important to recognize that these state marijuana laws do not change the fact that using marijuana continues to be an offense under Federal law.”

This leaves employers attempting to balance sometimes conflicting state and federal laws with standards and policies designed to ensure that employees are not impaired on the job.

To avoid absenteeism, accidents, lawsuits, and regulatory investigations, employers must understand their rights and obligations, particularly with regards to drug testing.

Danger of Workplace Usage

According to a 2009 memorandum published by the U.S. Department of Justice (DOJ), “As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

In response, the Department of Transportation (DOT) published a “ ‘Medical’ Marijuana Notice” in February 2015. In it, the DOT wrote, “We have had several inquiries about whether the DOJ advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s long-standing regulation about the use of marijuana by safety-sensitive transportation employees…We want to make it perfectly clear that DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program.”

According to the National Institute on Drug Abuse, which is part of the National Institutes of Health, studies have suggested links between marijuana use and negative consequences in the workplace, such as a higher risk for injury or accidents.

One study found that postal workers who tested positive for marijuana on a pre-employment drug screening had 55-percent more industrial accidents, 85-percent more injuries, and 75-percent greater absenteeism compared with those who tested negative for marijuana use.

For employers, these conflicts demonstrate the challenges with maintaining a safe, efficient workforce amidst the increasing number of states that have legalized medical and recreational marijuana.

Understand Current Laws & Regulations

Workplace drug testing has been complicated by the increase in marijuana-related legislation. According to the National Conference of State Legislatures, 23 states and the District of Columbia have passed laws allowing medical marijuana. Several states, including Alaska, Colorado, Washington, and (as of July 2015) Oregon, as well as Washington, D.C., have legalized recreational marijuana use.

Despite the rise in legalized marijuana, it is still illegal in most states and under federal law. Along with the federal Controlled Substances Act, which classifies marijuana as a Schedule 1 drug (along with LSD and heroin), a number of different federal laws can impact employers, employees, and a workplace’s drug policies. Those laws include the Drug-Free Workplace Act and U.S. Department of Transportation regulations.

Increase of Lawsuits Over Failed Drug Tests

When employees have sued over workplace rules on drug testing for marijuana, the courts have generally sided with employers. In 2012, the U.S. Court of Appeals for the Sixth Circuit ruled in favor of Wal-Mart Stores Inc., after it fired an employee with cancer, who had a state-issued medical marijuana registry card.

The Sixth Circuit held that Michigan’s medical marijuana law does not regulate private employment.

However, several other cases have recently emerged where employees have sued their employers over medical marijuana use. Many have been closely watching the Colorado lawsuit filed by Brandon Coats against his employer, DISH Network. That lawsuit has dragged on for years and has been appealed to the Colorado Supreme Court, which heard oral arguments last year.

Coats, a quadriplegic since a car accident in his teens, had a legal prescription for medical marijuana and a good employment record with DISH when he failed a random drug test. Citing its zero-tolerance drug policy, the company fired Coats. He then sued, claiming his termination violated Colorado’s Lawful Activities Statute, which prohibits firing employees who take part in “any lawful activity off the premises of the employer during non-working hours.”

The trial court and appeals court sided with DISH, holding that marijuana use is not a lawful activity, but the state’s highest court heard oral arguments late last year, and a decision is expected shortly.

Consider What to Do Now

Unfortunately, this leaves the landscape surrounding employee drug testing hazy, and it may be some time before state and federal laws become more consistent.
Until then, employers should take several steps to stay in compliance with all necessary laws, while, at the same time, creating a productive work environment and practical drug testing policies, including:

1. Consider Your Industry

Companies should consider job functions and the specific requirements of their industries. While no company should tolerate any sort of on-the-job impairment, drivers have different safety considerations than administrative assistants, so fleet owners have a more compelling reason to ensure that drivers are never impaired on the job.

2. Consider Your Location

Companies based in states where recreational marijuana use is legal, such as Colorado and Washington, may need to have different conversations than those based in places where marijuana use is completely illegal. Multi-state employers need to be particularly careful when developing corporate policy. Companies that fall under federal regulations, such as those in the transportation industry, also have a different set of rules with which to comply.

3. Consult with the Experts

When looking at drug testing policies, employers need to work with those knowledgeable about state and federal regulations, and current case law. These experts should include in-house resources, such as the HR department, as well as the company’s attorneys. Industry associations can also be a valuable source of information and best practices.

4. Update & Communicate Policies

After talking with attorneys and HR, employers must make any necessary updates and adjustments to their employee policies. Once the updates are completed, employees must be regularly educated about the company’s policies, standards, and expectations. This includes specific information about when and how drug testing can occur.

As more states allow marijuana use, employers should take some time to consider their approaches to drug testing. Companies may use drug testing for a variety of reasons — as a condition of employment, randomly, annually, for cause, or after accidents. The laws on drug testing vary by state and industry, and companies need to abide by all relevant laws.

5. Train Managers & Supervisors

Along with educating workers, managers and supervisors need training about the company’s policies and how to respond when they notice potential problems or as issues arise. Managers and supervisors especially should be trained to recognize the signs of impairment, in order to better ascertain when one of their employees may be under the influence while on the job.

6. Use Drug Testing Consistently

It is critical to develop and implement drug testing policies that are uniformly applied. An inconsistent approach can leave companies open to lawsuits and claims of discrimination.

The Bottom Line

Navigating the various issues involving employee drug use has always been complicated for employers, especially where there is a safety concern. Compliance with the conflicting marijuana laws has only added to the headaches. Until the laws and courts become more consistent, companies need to proceed cautiously and consult regularly with HR and attorneys.

Richard Alaniz is senior partner at Alaniz Schraeder Linker Farris Mayes, L.L.P., a national labor and employment firm based in Houston. He can be reached at (281) 833-2200 or ralaniz@alaniz-schraeder.com.