High Times: Marijuana in Today’s Workplace

America’s evolving perception of marijuana use is impacting the office setting. While the use of marijuana in the US is illegal under federal law, a state may pass laws permitting recreational or medical use so long as it maintains a proper regulatory system. Does this present a conflict amongst the courts and a headache for employers? You bet. Today, twenty-one states and DC permit the use of medical marijuana, and four more states have medical marijuana legislation pending. Given these developments and others on the horizon, employers must adapt to a workplace that may include recreational pot smokers.

Employers face uncertainty when adjusting hiring protocol, supervisory responsibilities and other risk factors in an age when marijuana use may be legal. Private employers technically have the right to limit workplace conditions including a strict no drug policy. However, this may give rise to a discrimination claim. What if a company terminates an employee who is legally authorized to use marijuana even if it is barred by the employer? This was the issue in the well-publicized Coats case, in which a quadriplegic was fired by his employer for violating its drug policy. According to the employee, he utilized medical marijuana to combat the effects of pain and seizures. The case is pending before the Colorado Supreme Court and may have major implications on this developing issue.

Other issues facing employers include drug-testing protocol. Employers should consider adjusting testing for the presence of marijuana to a test that checks impairment. This is tricky for the employer, however, given that (a) employers are cautious about making any changes that could reduce worker safety but (b) employers are hesitant to restrict off-hours employee conduct that some states deem legal. An employer may not limit alcohol ingestion so long as the employee is not affected while on the clock, right?

Moreover, companies that make their premises available to the public also have to contend with the issue of guests seeking to use medical marijuana on site. This issue was reportedly raised in a recent New Jersey discrimination lawsuit filed after a casino prohibited a medical marijuana card-holder from smoking marijuana on site, despite no law clearly barring him from doing so.

These are just some of the issues facing employers arising from the legalization of marijuana in some states. Given the growing use of medical marijuana, it may be time for employers to revisit or modify their drug policies to reflect changing laws. Failure to adapt to changing legislation could lead to potential liability.