The increasing use of medicinal and recreational marijuana is creating significant challenges for public- and private-sector employers and their safety consultants. These issues are not going away—in fact, they are becoming more significant each day, as 23 states and the District of Columbia have now passed laws permitting individuals to use marijuana for medicinal purposes. Colorado, Washington, and Oregon have passed legislation permitting recreational use.

The recent legalization of marijuana by several states has created a major dilemma for employers. Do employers continue to enforce their traditional substance-abuse policies, or adopt a new approach for dealing with employees who test positive for marijuana in the workplace? Does the Americans with Disabilities Act (ADA) protect employees who claim discrimination based upon their use of marijuana for a disabling medical condition? Do employers violate the Occupational Safety and Health Administration’s (OSHA’s) General Duty Clause by allowing employees who use marijuana to perform safety-sensitive jobs, and thereby create a workplace hazard that the OSHA standards seek to eliminate? What about the Department of Transportation’s (DOT’s) stringent substance-abuse regulations? Do they trump state marijuana laws?

“Smoking out” the answers to these and other difficult questions is a challenge—particularly considering the growing public sentiment favoring the legalization of marijuana, as well as decriminalization and legalization legislation. Compounding the problem is the fact that even though the federal Controlled Substances Act prohibits the use and dissemination of marijuana, the Department of Justice issued an enforcement priorities memorandum in August 2013 indicating that federal prosecution of individuals who use marijuana would be deemphasized.

For example, in Ohio, legislation was proposed in 2013 to allow for medicinal and recreational use of marijuana, but the legislation has not been enacted; it appears that the proponents are focusing on the 2016 election. The constituents may vote in favor of legalizing marijuana because it has become a big business opportunity in some states, with the potential to produce significant tax revenue.

Can an employer ban the use of marijuana by an employee if it is permitted by state law—and if the employee has a prescription? Even more perplexing, does an employer have the right to terminate an employee who tests positive for marijuana, even if the employee shows no signs of impairment on the job?

While the new marijuana laws are in their infant stages, some conclusions can be drawn:

• In most states, including those having marijuana laws, employees who are shown to be “impaired” on the job may be disciplined and discharged by an employer.
• In states that do not have marijuana laws discussing whether an employee can test positive while at work, an employer may discipline and discharge an unimpaired employee testing positive for violation of its drug policy—a zero-tolerance policy remains lawful.
• Federal government contractors subject to the Drug Free Workplace Act of 1988 should continue to follow all of the requirements of the Act, even in states permitting marijuana use by employees.
• Employers subject to DOT regulations should continue to follow the DOT substance-abuse regulations and testing obligations per the DOT Medical Marijuana Notice of February 22, 2013, and the Recreational Marijuana Notice of May 27, 2014.
• Employers should not consider making an ADA-reasonable accommodation for a disabled individual when the accommodation is the use of medical marijuana.
• Abandon random testing in the states where the employer has employees subject to the new marijuana laws, unless the random testing is required by federal laws and regulations.
• Ohio employers and employers within the 23 states and the District of Columbia with the new laws should incorporate “reasonable-suspicion” criteria within their substance-abuse programs so that supervisors can refer suspected employees to drug testing based on suspicion of impairment. Reasonable suspicion includes such things as slurred words, bloodshot eyes, and unstable walking. Employers should not put
  the reasonable-suspicion requirement within their published program; instead, merely utilize it as a “behind-the-scenes” protocol.
• Train supervisors on the signs and symptoms of impairment and reasonable suspicion; establish a protocol for supervisors to use.
• Monitor developments in the law, including state and federal court decisions interpreting the interplay between state marijuana laws and federal drug-free workplace mandates.
• Monitor Dunlevey, Mahan & Furry’s website for developments, which are displayed in the Learning Center section at www.dmfdayton.com.

Please remember that the specific facts of any circumstance and the specific provisions of the laws in a particular geographic territory may change the general advice that is provided herein. Employers should consult with competent labor and employment law counsel to ensure they are taking appropriate measures.