By Larry Henry
Thirty states and DC currently have laws legalizing the use of marijuana in some form. Eight states and DC have some degree of legalization for recreational use. The rest of the states have legalized its use, to varying degrees, for medical use.
However, the federal government has not legalized marijuana. And, the fact that a state has legalized marijuana does not mean that employers cannot prohibit marijuana usage and drug test applicants and employees.
Is there a difference in what employers can prohibit depending on whether the applicant (or employee) uses marijuana for recreational or medical purposes?
All employers are required under OSHA to provide a safe place to work. The elimination of the influence of drugs/alcohol at the workplace is essential in meeting this legal obligation. Further, federal contractors are required to have a drug free workplace. Some people think that if marijuana is permitted for medical or recreational use an employer cannot restrict the use. However, everyone seems to understand that you cannot show up for work drunk or you cannot work if you are taking any medication that will interfere with your performance.
The classic examples of the latter are the use of machines, flying an airplane, driving a truck etc. Frankly, there are few jobs that are not adversely affected by the influence of alcohol or marijuana. In this regard, marijuana is no different than alcohol in the workplace. An employer can have rules that promote productivity as well as safety. Further, an employer can prohibit the storage of marijuana at the workplace because that violates federal law.
If you employ individuals in a state that has legalized marijuana, we encourage you to review your policy and procedures to ensure you are compliant. If you are in a regulated industry, such as the Department of Transportation, federal law drug testing laws and procedures will still be enforced.
About Larry Henry
After law school, Larry entered the Army JAGC for a four-year tour. While there, he learned trial practice in defending criminal charges – over 2,000 cases, with an 85% win rate. After the service, he entered private practice where his trial experience was needed to head the firm’s employment section. Larry successfully defended/tried employment cases for many years without losing a case.
Larry is considered a leading expert on consumer reporting in the country. He handles all areas of compliance, legislation and litigation with employment consumer laws. He created and maintains an online compliance website for the industry: CRAHelpDesk.com. He is a sought-after speaker on such subjects.