With medical weed now legal in fourteen US states there will probably many thousands of employers out there wondering how to deal with keeping the work place drug free while, at the same time, providing the necessary environment for those who use prescribed medical marijuana. To be honest, the whole medical pot question is something of a hornets’ nest. The federal government refuses to move from the ‘all marijuana is illegal’ stance and the legal states have wildly differing approaches to the subject. If ever there was a good time to review your company’s drug policy, it has to be now.
Here’s some direction for these largely uncharted waters:
For those who companies who work for the government, i.e. those that have federal contracts, the guiding document has to be Drug Free Workplace Act of 1988, which prohibits the use of marijuana in workplaces participating in such contracts.
The Department of Transportation also prohibits the use of medical marijuana for those workers in what they term ‘safety-sensitive’ jobs, so think pilots, bus-drivers, truck drivers, subway operators, ships’ captains, and transit fire-armed security. This prohibition applies in all states, including those where use of medical marijuana is allowed.
It bears remembering that most state legislation protects medical users of cannabis from ‘civil and criminal’ penalties and not from having their employment terminated.
Attorney Damon Davis, at law firm Killian & Davies, offers the following words of advice: “Treat it (medical marijuana) like you would any other prescription medication, can the employee do it safely and legally?” This attitude, he says, could save employers both time and money in a climate that sees medical marijuana becoming more widely accepted and expected to become legal in more states this year and next.
Different States, Different Rules
First thing to say is that in legalized sates, licensed patients are protected from arrest as long as they have completed the necessary paperwork and have proof of a physicians approval. Then, it all gets a bit confused…
If you are living and working in California or Oregon and test positive in the workplace for marijuana you can be fired. This is true even if you are using marijuana with the full approval, and a prescription from, your doctor.
Precedent was set in 2008 by the Ross v RagingWire case in which the California Supreme Court found that employer drug testing is legal and it is not discriminatory to fire an employee for using medical cannabis even when they use it away from the job. In Oregon, the case of Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Supreme Court found that Oregon employers need not hold with the use of medical marijuana by employees, because federal law takes precedence over state law.
In Vermont, your right to use marijuana in your own time and space is accommodated, however, should you be found under the influence of cannabis in your place of employment you may be arrested or prosecuted. The same applies in New Mexico.
The moral has to be – check the rules and regulations in your state very carefully before you use or consider using medical marijuana either in the workplace or at home.