Clearing the Smoke: Medical Marijuana and the Workplace - Part 2

  • Posted by: J. Kent Gervasini |
  • 8/4/16 |
  • 12:00 AM
Clearing the Smoke:  Medical Marijuana and the Workplace - Part 2

Implement an Affirmative Plan of Action Now to Deal With Compliance in the Workplace
Denver employers and staffing agencies certainly recognize that off-duty use of medical marijuana presents a slippery slope, as discussed in our recent blog, Clearing the Smoke  Medical Marijuana and the Workplace - Part 1. 

Our discussion now continues to follow the American Staffing Association's (ASA) issue | paper presented by Diane J. Geller, Esq., partner in the law firm Fox Rothschild.  Part 1 gave us a comprehensive overview as to the lack of consistency and clarity among statutes.  These inconsistencies are now creating a myriad of challenges for all employers throught the U.S. and Denver employers in particular, as they try to navigate the conflicting laws. In Part 2,  Ms. Geller in her current reporting has also given us 5 thoughts that every employer should consider in their planning to reduce liability in navigating the slippery slope of medical marijuana in the workplace.  Here are her suggestions:

Planning Reduces Liability
When faced with the issue of drug compliance in the workplace, it is important for employers to make an affirmative plan of action that includes the following:

  1. Adopting a drug-free workplace policy.
    Make certain that you clearly define what will be considered an illegal drug, including stating if the testing will include the use of marijuana. In connection with such policy, review all of the testing programs to ensure that you have all the releases required. Make certain you are using a reputable laboratory with a medical review officer. Do not take disciplinary action for a positive test without a confirmatory test. Make certain your policy and protocol comply with applicable state laws. For example, some states prohibit random drug testing.
  2. Taking affirmative steps to communicate your drug-free workplace policy to your employees.
    Always follow your policies on a consistent basis.
  3. Reviewing job descriptions and including in those descriptions all job duties and responsibilities—not just the essential functions.
    State laws like Nevada’s provide that the employer is not required to accommodate the use of medical marijuana if the employee cannot fulfill any or all of his or her job responsibilities.
  4. Not asking about the possession of medical marijuana cards in the hiring process, even in states where medical marijuana is permitted.
    Follow the same procedure as you do with regard to ADA questions. While the possession of a medical marijuana card or the use of medical marijuana is not protected by the ADA, the underlying medical reason is likely protected.
  5. Training managers to recognize impairment.
    Although using marijuana while on the job is never appropriate, neither is impairment that results in the inability to perform job duties. Supervisors should not rush to judgment, but should seek direction from management and counsel, if appropriate, to determine a course of action. When taking action, make certain to document the reasons—including the observations.

Ultimately, while there are few reported cases regarding implications of the use of medical marijuana in the employment setting, the law continues to develop. Therefore, employers need to tread softly until more clarification is provided in states that permit the use of medical marijuana on how the state law with be enforced in light of the federal law. It is highly recommended that employers remain vigilant regarding changes in local and state laws on medical marijuana, and consult their local counsel when developing or updating a drug-free workplace policy.


The information above does not constitute legal advice.
Employers and staffing agencies should consult a Colorado labor or employment attorney with additional questions,
or for guidance and more information.

Source: Reprinted with permiission of  the American Staffing Associations (ASA) - issue | paper, Aug. 4, 2016 "Clearning the Smoke: Medical Marijuana and the Workplace"--authorized by Diane J. Geller, Esq., partner in the law firm Fox Rothschild.

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