I am a product of the 90s. I watched “TGIF” every Friday night growing up, can recite all the lyrics to the most popular New Kids on the Block songs and am fluent in “Friends” quotes. Never have I used Ross’ “Pivot!” line more than in the past few years.
We in the HR world have been charged with updating our company policies and practices each time federal and state regulations change. And lately it seems like we’ve been asked to “pivot” daily. I exaggerate, but between ever-evolving COVID-19 regulations and medical marijuana laws, it does seem like it.
As an HR Knowledge Advisor, I’ve gotten one question quite a bit recently: Can we still enforce a drug-free workplace policy given the legalization of medical marijuana? In short, yes, but doing so may look slightly different than it did in the past.
Depending on applicable federal and state laws, an employer may want to consider treating medical marijuana like any other controlled substance. For instance, an employer may still require employees to report to work fit for duty and free from being under the influence of any controlled substance, including medical marijuana.
And although the Americans with Disabilities Act (ADA) does not protect medical marijuana use at the federal level, that might not always be the case at the state level. Depending on current state regulations, an employer may want to engage in the interactive process, as outlined by the ADA, with an employee to determine any workplace accommodations, including the use of medical marijuana. During that process, an employer may ask employees to consult with their doctors to determine a medication’s side effects and its influence on an employee’s ability to be fit for duty and work safely.
When it comes to pre-employment, random and post-accident drug screens, it is becoming a common employer practice to utilize a four-panel drug test that does not include a test for marijuana, rather than a more traditional five-panel test. According to SHRM’s article Marijuana and the Workplace: What’s New for 2020? “more and more employers appear to be treating marijuana use like alcohol use and allowing recreational off-duty use.” Given the legalization of medical and recreational marijuana, employers may find it easier to remove marijuana from drug tests all together.
As of the publication of this blog, medical marijuana has been legalized in 36 states. Federal and state legislation is ever-changing, and as HR professionals we’re being asked to pivot at each turn.
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