What’s Included in a Drug-Free Workplace Policy?
HR leaders must rethink traditional assumptions about drugs in the workplace.
Drug abuse problem issues and concepts word cloud illustration. Word collage concept.
There are many reasons for employers to promote and enforce a drug-free workplace policy and to engage in drug testing of employees. Some employers are mandated by law to have drug testing programs. Many employers choose to drug test employees because of safety-sensitive positions, reductions in rates for workers’ compensation insurance or the employers simply want to ensure that their employees are not impaired.
The typical focus of an employer’s drug-free policy is illegal drugs, so how do employers deal with both the legalization of formerly illegal drugs, like marijuana, and the abuse of legal drugs, like opioids and alcohol? State law, federal law and decisions interpreting those laws have created a patchwork of regulations that is beginning to upend the traditional assumptions about drugs in the workplace.
Marijuana: Is It Legal or Illegal?
Many states have legalized the medical use of marijuana, some states have legalized the recreational use of marijuana, and some states have decriminalized the use of marijuana.
Under federal law, possession of any amount of marijuana remains a crime. Recently, Attorney General Jeff Sessions released a memorandum that directed all U.S. Attorneys to enforce the Controlled Substances Act, which prohibits the cultivation, distribution, and possession of marijuana. In deciding which marijuana-related activities to prosecute, the Attorney General directed prosecutors to follow the principles established by the U.S. Attorneys’ Manual and to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community. The memorandum also rescinded Obama administration guidance that took a laissez-faire stance on the enforcement of federal marijuana laws in states that have legalized either medical or recreational use.
The term “medical marijuana” refers to use of cannabinoid drugs for its therapeutic effects, including pain relief, control of nausea and vomiting, appetite stimulation, anxiety reduction, and sedation, as well as the treatment of spasticity, glaucoma, and movement disorders. Twenty-two states now allow for use of medical marijuana, 13 states allow for the limited use of cannabis oil, and seven more states are considering passage of such laws. In states that allow access to medical marijuana, users are generally required to register with the state and obtain a medical marijuana identification card.
For recreational use of marijuana, defined in many states as use by adults 21 and older, eight states—Alaska, California, Oregon, Nevada, Washington, Colorado, Maine, and Massachusetts—and Washington, D.C. have legalized the recreational use of marijuana.
While still part of the marijuana-law trend, but perhaps less important to employers, many states and municipalities have decriminalized to some extent or another the possession of small amounts of marijuana—either making it a civil infraction or a minor misdemeanor.
Notably, many of the new legalization statutes do not necessarily require employers to accommodate medical marijuana use, and most states allow employers to take adverse action against an employee for failing or refusing to take a drug test. Many of these state marijuana laws have express carve-outs that allow employers to prohibit use on the premises and on-the-job intoxication. Court decisions in some jurisdictions now expressly support an employer’s right to terminate employees for positive drug-test results, despite legalization statutes. Accordingly, in most jurisdictions, an employer is still able to establish policies prohibiting marijuana use and intoxication and to drug test employees in accordance with that policy.
Some state statutes and court decisions take the opposite approach—holding that an employer cannot discriminate against an employee simply for being a medical marijuana user. Further, because most medical marijuana laws are relatively new, not all states have had the opportunity for judicial interpretation of marijuana laws, particularly in the employment context, so the law in this area is constantly evolving. The trend in claims against employers for medical marijuana use is the claim that the employer failed to accommodate a related disability when the employer took action based on drug-testing results or disclosure of use. In light of this trend, employers should evaluate whether any drug testing program or drug policy is job related and to carefully consider the job-related reason for taking an adverse action that involves the use of medical marijuana.
Can I Test for Opioids?
Opioids present a unique challenge for employers with drug-free workplace policies. Opioid abuse has reached alarming levels in American society. Opioid abusers threaten safety in employment, and in most jurisdictions and circumstances, employers can test for use of such drugs. Some employees, however, may have legitimate, medically authorized reasons for taking opioids. Employers should beware that terminating employees for positive test results under such circumstances could result in challenges to drug-testing policies and significant exposure. In May 2017, a Washington federal district court judge ordered an employer to pay over $1.8 million in damages to a terminated employee who tested positive for opioids after being prescribed medication for migraines. Given such risks, an employer might want to tailor its drug-testing policies to avoid drastic measures such as immediate termination of an employee when an employer learns of positive test results for opioids. Where necessary, employers should provide reasonable accommodations to employees taking prescribed medications and to consider the job-related reasons for any adverse action against the employee.
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