REPOST ARTICLE SOURCE:
Recent legal and political developments around marijuana legalization may prompt employers with drug testing policies for current and prospective employees to assess how they will continue to apply—or even revise—those policies.
Last November, with voters approving ballot initiatives, Colorado and Washington became the first states to legalize the recreational use of marijuana. In addition, 18 states (including Colorado and Washington) and the District of Columbia have approved the use of marijuana for medical conditions.
Nevertheless, the status of these state laws remains in flux. The Drug Enforcement Administration has stated that its ongoing enforcement of the Controlled Substances Act (CSA), in which marijuana is a Schedule I controlled substance, remains unchanged. Yet the U.S. Department of Justice has indicated that it is reviewing the ballot initiatives and has promised to issue in the near future a policy on how it will respond. On March 5, 2013, a bill entitled the Respect States’ and Citizens’ Rights Act of 2013 was introduced in the U.S. House of Representatives by two representatives from Colorado, Diana DeGette (D) and Mike Coffman (R). This bill would add a provision amending the CSA so that it would not be construed as pre-empting any state law pertaining to marijuana.
Impact of Marijuana Legalization Statutes on Drug Testing Policies
The Colorado law—specifically Amendment 64 to Article 18 of the state constitution—prohibits employers from terminating employees for engaging in lawful activities (marijuana possession and use) off the employer’s premises during nonworking hours unless the employer’s decision relates to a bona fide occupational qualification, the employee’s specific duties, or the employer’s efforts to avoid a conflict of interest. However, the Colorado law expressly states that marijuana legalization does not affect the right of employers to maintain a drug-free workplace.
The Washington law is silent on this matter. Nevertheless, the state Supreme Court of Washington issued a decision in 2011 upholding the right of an employer to terminate an employee who violated the company’s drug policy through medical marijuana use that was lawful under state statute. State supreme courts in some other states with medical marijuana laws—California, Montana, and Oregon—have reached similar results. Therefore, at least for now, employers can continue to enforce their various drug testing and drug-free workplace policies in those states with statutes allowing for some types of marijuana use. Nonetheless, the substantial publicity surrounding the marijuana laws may have led certain employees to believe that they no longer need to abide by those policies. Accordingly, employers in the near term may want to communicate to their current and prospective employee populations whether or not the laws have had any effect on their workplace drug policies.
Over the longer term, as more states—and perhaps the federal government—re-assess whether the personal purchase, possession, and use of marijuana should continue to be a criminal act, employers may need to review and possibly revise their drug policies. Two key bases on which courts have relied in ruling against employees who have been discharged for violating workplace drug policies by using medical marijuana in accordance with state laws are the federal law’s (i.e., CSA’s) pre-emption of state marijuana laws, and the inability to find a clearly expressed public policy in favor of permitting marijuana use contrary to employer policies that would operate as an exception to the at-will employment doctrine. If the federal government should decline either through administrative or legislative means to exercise its pre-emption power over state marijuana legalization laws, and/or courts begin to find a clearly expressed public policy permitting marijuana use arising from the ballot initiatives, it may be more difficult in all situations for employers to defend terminating employees (or refusing to hire candidates) because of their marijuana use.
One challenging question employers may soon need to address is whether they will continue to treat marijuana in the same fashion as they treat other illegal drugs, such that any detectible amount in an employee’s system or extremities violates their drug policy. As an alternative, a workplace impairment / under the influence standard could be used for marijuana as is now often used for alcohol. To do so, it would be necessary to establish an amount of marijuana that if present in the system would be sufficient to constitute workplace impairment. So far this has not been done, even in Colorado and Washington. It is still illegal in both states to drive under the influence of marijuana, though only Washington has set a minimum “under the influence” amount (5 nanograms of THC—the primary intoxicant in marijuana—per milliliter of blood). Furthermore, as most employee drug testing programs look for the presence of marijuana in urine, hair, or sweat, minimum levels of THC would need to be established there as well to denote “under the influence.”