Courts generally have permitted employers in states that allow some legal marijuana use to continue to maintain drug-free workplaces and to take action against workers for a positive drug test for THC. Yet observers say there remains great variability in the degree to which that message has filtered out to the business community, leaving some employers confused over whether they should continue to include marijuana as part of their testing panels.
Jo McGuire, a Colorado-based workplace safety expert who is a certified Drug and Alcohol Testing Industry Association (DATIA) trainer, says this problem is particularly noticeable among smaller businesses that likely don't have an on-staff safety manager tasked with studying these issues. “By and large, these employers are so focused on doing what they can do to keep their company open,” says McGuire.
Case law, however, has been firmly on the side of allowing employers to stay on course with strict drug-free workplace policies that include marijuana, in large part because the drug remains an illegal substance in the eyes of the federal government. However, there is at least some evidence that the volume of workplace testing that includes marijuana is subsiding. Some employers believe that a more relaxed public mindset about the drug means that a growing percentage of their labor pool uses marijuana at least occasionally.
One of the recent legal cases that received a great deal of attention beyond the borders of its home state involved Brandon Coats, an at-home customer service representative for Dish Network in Colorado who had a medical marijuana card because of a disability but was fired from his job after a positive test for THC. Lower-court rulings upheld the employer's right to maintain a zero-tolerance workplace policy, and last June the Colorado Supreme Court unanimously affirmed the rulings against Coats.
The state Supreme Court ruled that employees who use marijuana for medical purposes are not exempt from the state's Lawful Off-Duty Activities Statute because that statute applies to activities that are legal under both state and federal law.
McGuire says that when the Coats case was being considered, attorneys who represent marijuana business interests in Colorado were optimistic that it would be decided in the employee's favor. They also believed this would have a broader impact on marijuana users whose recreational use is considered legal under Colorado's groundbreaking 2013 voter-approved initiative.
Cases in other states also have been favorable to employers. Last November, a federal court in Washington state granted a motion for judgment in favor of defendant Safeway, Inc., in a case in which it fired an employee of its beverage plant who tested positive for off-duty marijuana use authorized through a medical prescription. The order stated, “Washington law does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace, even if medical marijuana is being used off site to treat an employee's disabilities, and the use of marijuana for medical purposes remains unlawful under federal law.”
Yet despite these judgments, employers in some industry groups that McGuire often addresses appear intimidated by the presence of legal marijuana statutes in some states—more so on recreational use but also for medical marijuana. “A lot of companies are failing to do pre-employment testing for marijuana these days,” she says.
Ironically, in the immediate aftermath of the recreational marijuana law taking effect in Colorado, The Denver Post reported that employers in the state generally stepped up their drug testing. Yet as the unemployment rate in the state declined, some employers, particularly in the hospitality industry, relaxed their testing policies, the newspaper reported.
Assessing the labor pool
Mark Pew, an authority on workers' compensation trends and senior vice president at PRIUM Medical Cost Management Services, says some employers are grappling with whether to drop THC from testing panels because they believe a substantial portion of their labor force is using marijuana. Pew says an attorney who represents construction firms recently told him that if post-accident testing for marijuana was routinely conducted by his client employers, “They'd have no workers left.”
McGuire hears similar comments in her discussions with industry groups, though she points out that companies or groups that hold the line on drug-free workplaces generally don't have problems with workers flouting the rules because the policies are explicitly stated.
Pew says the disparity between federal and state laws regarding marijuana gives companies license to maintain strong drug-free workplace policies. But he adds that this disparity might be addressed in coming years, although the direction of the political winds nationally could have an impact on the timing. The discussion to reclassify marijuana as a Schedule II drug, which would affirm an accepted medical use but with strong abuse potential, will most certainly continue, he indicates.
Addiction treatment providers can and should play a role in educating employer groups about the importance of maintaining safe workplaces for all employees, McGuire believes. “Professionals should help employers understand the need to come to a place of health and wellness,” she says.