Holly Hicks, workplacerantings.com
As more states pass laws which allow for the prescription of marijuana to treat a wide range of health issues, many companies within those states are now having difficulty reconciling once popular zero tolerance drug policies with the new reality of legalized marijuana.
A changing political climate has resulted in a few companies altering drug policies to better accommodate workers who have been prescribed marijuana by licensed physicians. Yet there are a number of considerations which have to be addressed in order to strike a balance between a reasonable company wide drug policy and one which allows for prescription usage of marijuana under certain circumstances.
Ultimately, this issue is left up for management to decide. Under current state and federal laws, companies don’t have to tolerate marijuana use of any kind among employees. So they’re free to fire workers who have legally been prescribed marijuana. On the other hand, a worker who can successfully claim a disability may have a case to make under provisions of the Americans with Disabilities Act of 1990. However, that same act specifically excludes substance abuse as a condition protected under the law. The majority of legal experts seem to think that the current laws are on the side of companies. So if companies don’t wish to hire people who have ingested or smoked marijuana, then they can simply continue to insist upon adhering to the same zero tolerance drug policy as before.
Many companies, however, believe that not making basic accommodations for potential hires may lead to a loss of talent and even a possible public backlash from customers. Medical marijuana is a political issue that has gained quite a lot of support in recent years. In the most recent polls, the majority of Americans support laws which allow for the drug to be prescribed under narrow circumstances. With this in mind, the politically and socially responsible thing may be for management to lessen zero tolerance policies to allow accommodations for workers.
The degree of accommodation is also ultimately left up for management to decide. For example, managers may decide that while medical marijuana use won’t any longer exclude an individual from being hired, the use of such a drug on the premises will not be allowed either due to a disturbance or possible hardship it may cause. Such a policy would no doubt be viewed as reasonable given the current political situation as well as the lack of legal guidance or precedent available to help companies develop better policies.
For the worker, as it stands, the legal recourse available is very limited and often uncertain. The only possible legal tactic would be to prove that the company’s policy concerning medical marijuana leads to discrimination against disabled individuals seeking work. How this will play out in a court of law, however, is also uncertain. Simply put, most states simply don’t provide any protection for people who work in a drug free environment. Whether or not a company should make reasonable accommodations is ultimately left up for lawmakers to decide.