Office Management: How to handle employee medical marijuana

Many company policies prohibit using alcohol and nonprescription drugs (pot) on the job or bringing them onto company property. Some policies state that employees who test positive for marijuana can be fired. Because pot that is used today can show up in a screen weeks later, employees can be fired for having used pot weeks before they started the job.

For example, AZ, CT, DE, IL, MN, NY and RI prohibit discrimination against employees or applicants who hold medical marijuana cards. This does not mean that workers can light up during a break. But it does mean that employers in these states may not be able to discipline or terminate employees who test positive for marijuana or even who are impaired by using it while at work.

But other states, such as AK, CA, CO, HI, MA, MI, MT, NJ, NV, OR and WA, have laws that say or strongly imply that employers need not accommodate use of medical marijuana. Changes to these state are still on going.

In 2013, the Department of Justice went further. It would not challenge CO or WA after they had legalized use of recreational marijuana, because the issue is not a priority right now.

Some federal contracts/subcontracts [see note below] require employers to comply with the federal Drug-Free Workplace Act, which prohibits use of any illegal drugs, including marijuana, at work. If your firm is in a state that bars bias against applicants or employees who use medical marijuana and your firm has a federal contract or subcontract requiring it to comply with federal law, it may be “off the hook.” Every state that bars this kind of discrimination exempts employers who, under federal laws or regulations, would incur the loss of a monetary- or license-related benefit.

Review your substance-abuse policy

If you are in a state with a medical marijuana law, review substance-abuse and drug-test policies before you pay unnecessary UI claims or end up in a discrimination lawsuit.

Expect that as states decriminalize possession of nonmedical marijuana, state laws and cases will become more complex.