Bloomberg Law
Feb. 26, 2020, 9:01 AM

INSIGHT: Cutting Through the Haze of Marijuana in the Workplace

Evandro  Gigante
Evandro Gigante
Proskauer Rose
Hayley H. Fritchie
Hayley H. Fritchie
Proskauer Rose

In the flurry of recent state legislation, employers—especially those operating in multiple states—have been forced to revisit their workplace drug policies. They quickly realized that what could have been a zero-tolerance policy 30 years ago is no longer an option across the board.

Imagine, for a minute, you are an employer with employees in multiple states (let’s take New York, Nevada, and Georgia), and at least some of those employees operate commercial motor vehicles at work.

In Georgia, you could implement a zero-tolerance drug policy with regular marijuana testing because marijuana is illegal under Georgia law, and there are no federal-law protections for marijuana use.

In New York, you must allow for the fact that medical marijuana is legal, and that it will soon be illegal to conduct pre-employment marijuana testing on job applicants in New York City.

And in Nevada, you would have to consider that medical and recreational marijuana are legal, and that employers may no longer deny employment to applicants because of a positive marijuana screening test (with certain exceptions).

But, don’t forget, some of your employees operate commercial motor vehicles, and under federal law, a person is not qualified to drive a commercial motor vehicle if they use marijuana.

Are Workplace Drug Policies Worth the Hassle?

It may be tempting for employers to remain wistfully unaware of developments in state legislatures across the country and avoid taking an official position on marijuana in the workplace until there is more uniformity, but that strategy carries significant risk.

For starters, many states require that drug and alcohol policies be written down and distributed to employees, especially where an employer intends to conduct testing. Moreover, the generations currently entering the workforce highly value openness and transparency, and a clear workplace drug policy can help recruit and retain new talent.

Good But Not Great Options to Enforce Workplace Policies

The next question is how the workplace drug policy should be enforced. Federal and state requirements aside, employers essentially have three options to regulate drug use: testing, monitoring, and passive enforcement.

Drug testing is popular because of its clear positive/negative result and the ability to engage a vendor to conduct testing. But state and local laws (such as New York City) often restrict drug testing of job applicants and employees, in addition to other legal restrictions on actions employers can take as a result of a positive test (such as Nevada).

Moreover, there is no equivalent of a reliable alcohol breathalyzer or blood test that tests impairment from marijuana. For example, chronic users can test positive for marijuana after 30 days of abstinence from the drug. In other words, drug testing is not a reliable indicator of what it seeks to prevent: impairment on the job.

A less concrete but perhaps more accurate approach is a monitoring system to detect impairment in the workplace. According to the National Institute of Drug Abuse (NIDA), marijuana can alter senses, inhibit sense of time, change mood, impair body movement, create difficulty thinking and problem solving, and impair memory.

Developing and implementing an objective system that monitors employee performance for these negative effects could help detect impairment at work, after which an employer could discipline the employee for violating the workplace drug policy. But of course, evidence of impairment can be hard to prove where an employee denies using marijuana or being under the influence whatsoever.

That leaves passive enforcement. An employer could implement a drug policy and then wait to catch someone in the act, i.e. possessing or using marijuana at work. But to do so would be with the knowledge that impaired employees could be evading discipline and impacting safety and productivity.

Harder Questions Remain Unanswered, for Now

Even after an employer has determined what legal requirements are applicable to their workforce, created a dynamic workplace drug policy, and implemented some system of enforcement for their employees, there is work left to do.

Effect on the Workforce. In a 1990 study reported by the NIDA, employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries, and 75% greater absenteeism compared to employees who did not.

But with recreational-marijuana legalization gaining steam in only the last few years, much work is left to fully understand the effect marijuana use may have on the workforce, which could impact the level of resources employers are willing to invest in maintaining a drug-free workplace.

Remote Workforce. As an increasing number of employees and contractors work remotely, employers will need to reconsider enforcement of workplace drug policies. How will the workplace drug policy apply to employees working remotely at home or at an off-site co-working space? How would a remote employee’s performance be monitored for impairment?

Other Applicable Laws. Employers should pay close attention to any statute that could reasonably protect off-duty marijuana use. For example, a recent amendment to Illinois law precludes employers from taking an adverse action against employees based only on their use of lawful products outside of working hours and off premises (with certain exceptions and without interference with performance), and specifically adds cannabis to the list of “lawful products.”

Could a terminated Illinois employee argue that she was unlawfully discriminated against for her lawful use of marijuana outside of work? Is that answer complicated by the fact that marijuana continues to be a Schedule I drug and illegal under federal law?

In sum, there is a tremendous gray area surrounding the legalization of marijuana and how that could impact the workplace. This much is clear: employers should ensure the structure and enforcement of their workplace drug policies comply with state and federal law and then clearly convey any workplace drug requirements to employees.

Staying on top of new developments, both in terms of new legislation and marijuana testing, will be critical moving forward as employers attempt to navigate the tougher questions that remain.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Evandro Gigante is a partner in Proskauer’s Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group.

Hayley H. Fritchie is an associate in Proskauer’s Labor & Employment Law Department.