Medical Cannabis and Your Drug Free Workplace
At our Legislative Update in June, issues around Medical Cannabis proved to be a hot topic in the discussion because employers are struggling with how to create and apply “Drug Free Workplace Policies” consistently, fairly and legally. We want to share some insights and summarize the issues for you.
What’s Legal?
In Maryland, there are “more than 50 dispensaries operating … as of April 2018, about ½ of the number that have been approved by the Maryland Medical Cannabis Commission.” (Baltimore Sun). Maryland is a “medical cannabis only” state. Interestingly though, DC has legalized both medical and recreational use.
Here’s the catch: Marijuana is still illegal under federal law and is classified as a schedule 1 drug by the DEA – meaning, at least in part, that the DEA believes cannabis has no medical value.
Making the Right Decision for Your Business
How do these conflicting cannabis laws impact an employer’s need or desire for a drug-free workplace? Some employers are wondering if they can still do pre-employment and periodic drug screenings. The answer varies depending on your business. According to the Society of Human Resource Management, “Companies covered under federal guidelines, such as federal contractors, and employers of certain types of workers such as commercial motor vehicle drivers and those in safety-sensitive positions still need to comply with federally mandated tests for marijuana use.” So, if you are a federal contractor or a business that falls under federal safety rules (for example, health care), your decisions about pre-employment and periodic drug testing for marijuana use are clear – you must continue to screen for marijuana in pre-employment testing.
But what about other businesses? Maryland has established no clear protections for employees who are users of medical cannabis, which means that your business has no legal obligation to accommodate an employee’s cannabis use at work or outside of work hours. Your company is not obligated to accommodate, but are you willing to accommodate an employee who uses medical cannabis?
Important Considerations about Medical Cannabis
A few things to consider before you make your decision:
Some forms of medical cannabis do not produce a high. Depending on the condition being treated, the content of the cannabis, and the method of delivery, there may be little or no psychoactive effect.
Even if you are not a government contractor, you have every right to enforce a drug-free workplace policy and a zero-tolerance policy. HR Strategy Group recommends that you consider eliminating a zero-tolerance policy if you have one. A zero-tolerance policy would force your hand in a situation where you might not wish to enforce it.
Employers do not test for lawful off-duty use of other intoxicants (like alcohol), and employees can use other intoxicants while off-duty without detection. Lawful off-duty use of medical cannabis will show up on drug screenings.
You are competing in the market for the best employees. Potential and current employees are looking for workplaces that fit their needs, that have workplace cultures that suit them, and that create opportunities for them. Bottom line? You know your workforce and your business needs. You need to create a policy that works for both.
Some Maryland employers who employ DC residents are struggling to reconcile the legality of recreational marijuana in DC with their drug testing policies. HR Strategy Group encourages Maryland employers to conduct pre-employment drug screenings for the drug panels that you select. If you prohibit marijuana and you hire a DC resident, you do not have to make any exceptions based on the residency of the employee. Federal law and Maryland law supersede DC law.
However, you do need to apply your policy consistently to all employees, no matter where they reside.
According to the ADA National Network, “While some states such as Arizona specifically provide protections for employees that have a valid prescription for medical marijuana, neither the District of Columbia, Maryland nor Virginia have such specific protections in their respective statutes. The lingering question is whether an employer’s decision to take an adverse action against an employee for using medical marijuana is protected under the Americans with Disabilities Act (“ADA”) or a state’s disability discrimination statute, or under public policy. To date, however, courts have ruled that, absent statutory protections, employers remain free to set their own drug policies and to discipline or terminate employees who violate those policies.” Your company will have to decide how and when disciplinary action takes place if a positive screening for cannabis is reported.
The Bottom Line on Medical Cannabis
Every business is different. HR Strategy Group has worked with a wide variety of businesses to create employment policies that accommodate their unique needs while still maintaining compliance with the law. More information about the importance of an employment handbook can be found here. If you feel that you need to make some adjustment to your drug-free workplace policy, please give us a call. We would be happy to assist you in getting this right for your business..
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