Employment Law Policy

Introduction

Whether (and to what extent) do employers in states that have decriminalized marijuana should be able to take adverse employment action against an employee for using marijuana? Do the laws in the state level affect the policies which are implemented at local corporations? It is with great consideration that employers should take action in carefully selecting their employees, especially in states that have decriminalized marijuana for recreational use. The greatest challenges facing human resources in many industries is having to comply with the laws and regulations made at the federal levels.

It is completely up to the employee do make his or her judgment about the use of marijuana for medical use, thus making it unpredictable to anticipate the use of such a substance in the workplace. What makes this situation even more dangerous and unpredictable is the side effects of the substance can cause the user to become impaired, hence making him or her unable to operate machinery, perform at optimal level, or may even cause harm to themselves or others. Aside from the negative consequences, there are benefits of marijuana for medical use if prescribed by a licensed care giver.

What troubles employers the most is the dangers of the medicinal use in the workplace and how it can affect one’s performance if marijuana becomes a necessity in the person’s life given the potential of addiction. This question poses a challenge for HR professionals across the states, as they grasp the knowledge and understanding of these latest orders being placed in their states, it becomes mandatory to keep track and stay up to date on the latest laws that affect marijuana becoming legalized within the state’s jurisdiction. As the organizations in these states that have decriminalized marijuana adapt, many should take caution and preliminary measures to ensure that those who are employed are abiding guidelines established that will comply with federal and state laws regarding marijuana.

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Some states have legalized the use of marijuana even though the state’s statutes are not consistent with the federal laws that dictate drug-free in the place of work. Besides, the state’s statutes have remained mute on whether an employer should maintain and accommodate individuals using medical marijuana in the workplace. In such circumstances and viewing it from the perspective of the employer, the department in charge of hiring and dismissal should develop a policy framework whose intent is to prevent the use of marijuana in the workplace for whatever the purpose (Gabrielson, 2014).

However, the employer has authority at his jurisdiction to decide what they want to do. Such determinations are based on the organization’s culture and must be inconsistent with the company’s policies regarding safety and sensitivity. There are prospects made that with the rapid upsurge in marijuana use could create numerous challenges to HR. It means that the organization’s head of human resources should be well prepared to tackle problems that could arise from positive drug screens.

What is more challenging is the process an organization would have to take in handling such incidences, although several states have allowed the use of marijuana. It’s this circumstance that must prompt HR to ask themselves some questions regarding the internal policies in place. The rationale is that an organization or business firm must have a clear stand on the use of marijuana while in the workstation. As such, the firm policies have to square it out with the laws of the state (Fleming, 2015). A critical approach could be defining the job categories so that a distinction is established on those which cannot allow marijuana use due to protection and sensitivity apprehensions.

In recent times, states have diverse regulations on medicinal use of marijuana. Some states claim that firm HR does not have to allow any case of cannabis use in the workplace. At the same time, some may consider accommodation on the basis that the drug had been used for medical purposes. Such an increased inconsistency of the federal laws and state statutes throw employers into a dilemma. It’s essential to argue that accommodation and retention of marijuana for the medical purpose, should be left at the discretion of the company?

“Zero Tolerance” Policies

Employers in the states that have decriminalized the use of marijuana must consider if their organization is under the regulation of “The Drug-Free Workplace Act.” This Act states that recipients of the federal grants should adopt a policy against drug abuse in their workplaces. The Act also requires the organizations to declare that their organizations are free from drugs (Stringham et al., 2017). Besides certification of “zero tolerance” to drugs, the employers must also observe the following guidelines: First, the employer should develop and publish a written policy for all employees and make sure that they all read and consent to the guidelines as the conditions of the contract.

Secondly, the employer should start an awareness program in the workplace to enlighten the employees about the effects of substance abuse, availability of drug counseling programs, workers assistance programs, rehabilitation, and drug workplace policies. Also, the awareness should highlight the potential penalties and disciplinary actions against those who violate the drug regulations (Leslie et al., 2019). Thirdly, the employer should make efforts to enhance a drug-free organization. Fourthly, the employer should make it a requirement for all employees to notify the managers within the shortest time possible in case of any conviction for abuse of drugs in the workplace.

However, the Act does not give the employer the responsibility to conduct regular and mandatory tests for drugs. If the employer is not compelled to adhere to this Act, they can still adopt the Zero tolerance policy for employees that work in “safety-sensitive” positions (Shah, 2018). Notably, a “safety-sensitive” position requires a worker to be responsible for their safety. Although an employer is required to initiate a zero-tolerance drug policy under this Act, he or she will still encounter several issues related to the use of drugs under the employer’s state decriminalization law.

Legalization of Medical Marijuana and Off-Duty Activities Statutes

Several states prohibit employers from discriminating or discharging their workers for “lawful” activities that the employee may engage during non-working time. However, these policies state that the activities should not interfere with the employee’s productivity or should not endanger or should not harm other employees. Also, exceptions to this statute exist if the restriction is per the primary goal of the organization. While these policies are evident, they do not clarify the issue of marijuana use. Notably, using marijuana is legal in the decriminalized states, while it is still unlawful under the laws of the federal government. For instance, Coats v. Dish Network in the Supreme Court of Colorado held the position that the federal law does not allow a worker top use medical marijuana since the activity is unlawful (Coats v. Dish Network, 2015).

The facts presented in the court were very compelling since the worker’s limbs were paralyzed and had not violated any workplace regulations apart from testing positive for marijuana. However, the worker indicated that he possessed a license to use medical marijuana under the state’s law. Since the Colorado law courts do not give a clear definition of the “lawful,” the court applied the meaning of “permitted by law.” It stated that any activity restricted by federal law is not legal (Aust, 2019). The court also determined that it would not protect lawful activities under the state law if they are not authorized in the federal under federal law. This case illustrates that employees should be cautious in their use of marijuana since the consumption of state-legalized marijuana would lead to the legal termination of their jobs.

Legalization of Medical Marijuana and Workers Compensation Insurance

The states and federal government have enacted passed laws that compel the employer to compensate the employee if they work injured during their work. The FECA (Federal Employees’ Compensation Act) states that the workers should receive compensation benefits, which include medical benefits and wages to the federal government employees (Cosgrove et al., 2017). The state laws also provide the compensation of workers of the private companies or the local governments. Notably, each of the states has its system and a governing board that provides oversight of the worker’s compensation plans.

To this effect, the decriminalization of marijuana has brought up two main challenges relating to the compensation laws. The first question is as to whether the workers who test positive for marijuana after an injury at the workplace would still be eligible for the compensation (Ghimire & Maclean, 2020). For instance, FECA highlights that there is no compulsion of an employer to continue giving the employee regular benefits if their injury resulted from intoxication by unlawful drugs (McClure, 2018). The second question is whether an employer should pay for medical marijuana therapy for a worker that was injured at the workplace. The state laws provide that the employer should cover the medical bills, including services, appliances, drugs, and supplies.

Focus of Employer

Decriminalizing medical marijuana has resulted in uncertainty for employers in several states. Nonetheless, federal laws disallow the use of marijuana, and such use is considered unlawful for medicinal purpose. In the same way, employment has not been exempted (Burke & Bhalloo, 2017). There is progress in the development of a practical legal framework that would help resolve uncertainties, even though much is still unclear. For instance, in a situation where the employer is from different states that disallow the use of medical marijuana but hire an employee from another country that decriminalizes medical marijuana for therapeutic use, the question arises on what statutes could control (Roth et al., 2018).

Many items on the use of marijuana for medicinal reasons have been raised with some centering on (FMLA) federal family and medical leave act. The FMLA laws stipulate that all workers that meet specific documented criteria should have 12 weeks of uncompensated leave annually. In a situation where a worker on leave get back to work and are unproductive due to their severe medical condition, thus unable to feed their family members, what would the possible action for the employer?

It’s not clear what the employer should do to an employer returning to work from a zero-tolerance use of marijuana for either medical purposes (Khan, 2018). Should the employer dismiss the employee for failing the drug test upon the screen, notwithstanding their use of marijuana is for therapeutic drives? If the employer dismisses workers on that ground, they may face possible claims that the termination is retribution for taking a work leave, an action that could violate FMLA laws.

Recommendations

It’s of great importance that employers should try to strike a balance between states and federal statues even though it’s challenging to balance the two. As such, the employer should take several steps to ensure their operations and decisions are following decrees of the regulation. Most important is for companies to learn the states and federals in marijuana use and associated laws that apply to both workers and employers (Filisko, 2015). Examples of such laws include the human rights laws, employee compensation.

An employer must know if the law allows for testing in case there is doubt on worker injury happened owing to drug usage (Suflas & Kelly, 2019). Second, employers must seek to understand their obligation in response to drug-free workplace laws. For instance, the employer should evaluate positions that are sensitive for marijuana users to work in. Third, all workers should understand their rights (Stein & CRC, 2018). For instance, a company can decide to dismiss a prospective employee in case they are legalized marijuana users for medical purposes. Finally, the employer must make the employee understand the internal policies by drafting clear laws that explain the company stands on marijuana use.

In conclusion, the persistent use of medical marijuana in the workplace, for medicinal purposes, results in complete loss of productivity. There is also a possible increase in accidents in the workplace. Employers need to understand that they have a responsibility under occupational and health safety laws to develop and maintain policies that sufficiently protect workers on the job even though managers strive for productivity and safety in the workplace, compliance with stipulated requirements.

References

1. Aust, T. (2019). Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption. Ohio State Public Law Working Paper, (481).
2. Burke, K., & Bhalloo, S. (2017). A Joint for the Joints: The Case of (Medical) Cannabis in the Workplace. Journal of Business Ethics Education, 14, 327-330.
3. Coats v. Dish Network, LLC, 350 P.3d 849, 2015 C.O. 44 (Colo. 2015).
4. Cosgrove, D. M., Zugelder, M. T., Nigem, K., & Wedding, D. K. (2017). Q: Since Marijuana Use Is Prohibited Under Federal Law, Can An Employer Safely Fire An Employee Who Tests Positive For Cannabis? (A: Yes, No, Maybe, I Don’tDon’t Know. Can You Repeat The Question? 1). Journal of Leadership, Accountability, and Ethics, 14(4), 84-89.
5. Filisko, G. M. (2015). Employers and workers grapple with laws allowing cannabis use. ABA Journal.
6. Fleming, M. B. (2015). The legal applicability of state medical cannabis laws on employers and employees. Southern Law Journal, 25(2), 215.
7. Gabrielson, A. (2014). The Right to Use Takes Its First Hit: Cannabis Legalization and the Future of Employee Drug Testing. Emp. Rts. & Emp. Pol’y J., 18, 241.
8. Ghimire, K. M., & Maclean, J. C. (2020). Medical marijuana and workers’workers’ compensation are claiming—health economics.
9. Khan, S. K. (2018). Employers Beware: What Are Employers’ Obligations and Rights Given New Cannabis Legislations. Belmont L. Rev., 6, 74.
10. Leslie, M., Rainey, S. J., Jencius, M., Rumrill Jr, P. D., & McMahon Jr, B. T. (2019). Workplace Discrimination Involving Charging Parties With Substance Use Disorders Under Title I of the Americans With Disabilities Act. Journal of Applied Rehabilitation Counseling, 50(1), 7-23.
11. McClure, R. M. (2018). Rolling with the Changes: How Marijuana Testing Policies Affect Job Seekers’Seekers’ Organizational Attractiveness, Job Pursuit Intention, and Corporate Social Responsibility Perceptions (Doctoral dissertation, Southern Illinois University at Edwardsville).
12. Roth, L. A., Hody, B. J., Chaffin, C. S., Laratonda, E., & Cook, G. W. (2018). Medical Cannabis: Addressing Impairment in the Workplace. Professional Safety, 63(08), 36-40.
13. Shah, K. T. B. M. (2018, February). The drug in The Workplace. In the 3rd ASEAN Conference on Psychology, Counselling, and Humanities (ACPCH 2017). Atlantis Press.
14. Stein, L. A., & CRC, C. (2018). Drug and Work Place Tolerances.
15. Stringham, C., Allard, I., Knapp, S., & Minor, M. (2017). Medical marijuana in the workplace: keeping small business informed. Small Business Institute Journal, 13(1), 16-29.
16. Suflas, S. W., & Kelly, C. J. (2019). Cannabis in the Workplace. Gaming Law Review, 23(7), 473-479.