Medical Marijuana in the Workplace

While it is still against federal law to carry marijuana, for medicinal purposes it is now legal in 32 states plus the District of Columbia. How does this impact our workplaces? Must we allow employees to use it? As with everything else these in HR days, “it depends.”

In the state of PA, there is no law that requires us to accommodate on duty drug use, even if an employee carries a certification card. (That’s right…it’s not a prescription, but a certification.)

There are also many jobs that restrict the use of medical marijuana for safety reasons, including those working with chemicals requiring permits, electricity, public utilities, those working at heights or confined spaces, those performing life threatening tasks, and those performing any duty that could risk the public health or safety.If the employee is in a safety sensitive position (operating heavy equipment, driving more than 50% of the time, etc…) we as employers, are liable and required to keep the general public safe.

Also worth noting, many federal contracts(those over $100,000)include a Drug Free Workplace clause, which require the employer working under the contract to provide a drug free workplace.(However, this clause does not require a zero tolerance drug policy. Talk about confusing!) If this is you…just call us for the details.

We also do not have to accommodate anything on our company property or any place of employment. So, if they bring it to work with them, and your policy states they cannot bring it on to company property or their workplace, they may still be discharged for violation of a company policy.

All that being said, in PA we cannot discharge, threaten, refuse to hire or retaliate against an employee solely on the basis of medical marijuana certification. What does that mean? We allow them to test and handle the results on a case by case basis. The Pennsylvania Human Relations Commission expects an interactive process for any employer with 4 or more employees. We should discuss reasonable accommodations, just like we would with any other disability.

So, now what do we do? Our recommendations include the following…

First, review your Substance Abuse Policy, to be sure it includes a statement that they are not permitted to bring it onto company property and requires self-disclosure of prescription medications and certifications to the HR department, and treat it as any other lawful prescription which may impair the employee’s ability to perform their duties. If not considered on a case by case basis, you may open your company up to a disability discrimination lawsuit.

Second, note which positions in your company are safety sensitive, and indicate that on those job descriptions.Language may read something like this…This is a safety sensitive position, which means the employee’s job performance can affect the safety of the employee and others. Job performance under the influence of alcohol or drugs could lead to physical injury or death to the employee, other employees, or members of the public at large.Therefore, employee must be able to perform the job responsibilities without causing a threat to co-workers, to the workplace, or to the public at large.

Third, if you present candidates with job offers in advance, be sure to provide advance notice of safety sensitive positions in a conditional offer of employment.

Lastly, identify performance standards for each role in the company. This act does not limit an employer’s ability to discipline an employee when the employee’s conduct, standard of care, or performance fall below that normally accepted for that position. In other words, determine performance standards and hold everyone accountable to those same standards.

If you operate in states other than PA, please note the requirements vary by state, and you should check with your consultant to determine the details.We realize this may still be as clear as mud.

Feel free to call us and we can help walk you through it.