Businesses are confronting escalating drug use in the workplace by their employees. Underlying this problem is the use of marijuana lawfully prescribed by physicians for medical issues, and the conflict between state and federal law. These inconsistencies have created confusion for employers — and not just in states where it is legal in some form — regarding issues such as drug testing and how to handle positive results, and making reasonable accommodations for medical marijuana users with disabilities. It will not be resolved anytime soon, leaving employers in a quandary regarding their ability to control the use of marijuana by employees during working hours.
Maine and Nevada have legalized both medical and recreational marijuana. They prohibit employers from discriminating against applicants or employees based on purely off-duty marijuana use. As of January 1, Nevada became the first state to prohibit employers from discriminating against employment applicants on the basis of a positive marijuana test.
Businesses can benefit by implementing well-crafted drug use and possession policies. They should clarify positions that are not protected by state medical marijuana laws, such as federal contract employees and safety-sensitive positions; exclude pre-employment drug screening for marijuana unless required by federal law, yet allow for post-hiring drug screening in the event of reasonable suspicion or an accident; and create a process for employees certified to use medical marijuana to provide notification to the employer prior to a potential positive drug test.