How is recreational marijuana impacting employers?

In 2017, 64 percent of Americans said marijuana use should be legal, according to a Gallup poll. Medical marijuana is now legal in 29 states and Washington D.C. The use of recreational marijuana is legal in nine states. As public opinion and state laws shift to accept marijuana use, should employers follow suit?

The increasing legalization of marijuana may lead to less employers testing employees for the substance, changes in HR policy and discrimination law discrepancies.

Marijuana testing

Today, unemployment in the US is 3.9 percent. This labor shortage has made the job market very competitive for employers. One way employers are opening their applicant selection is by quietly jettisoning marijuana drug testing policies.

Traditional zero-tolerance drug policies can still be enforced by private sector employers, despite new state laws permitting marijuana use. However, many employers have chosen not to include marijuana in a post-offer/pre-employment drug test. These tests can still assess other illicit drug use, such as opiates, amphetamines, PCP and cocaine.

New York’s Compassionate Care Act allows employers to avoid complying with any act that may violate federal law or cause the company to lose a federal contract or funding. Employers that depend on federal funding may be likely to keep their bans on marijuana for this reason — even if recreational use is legal by state law.

Medical marijuana and disability discrimination

New York is an employment-at-will state, meaning that a private sector employer can generally hire or fire candidates for any reason, except for discrimination. This has left some employers wondering if terminating or denying employment on the basis of medical marijuana use could violate disability discrimination laws.

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against individuals on the basis of a disability. It also requires employers to provide reasonable accommodations to employees with disabilities so that they can perform the functions of their job.

However, the ADA explicitly allows employers to make an exception if the individual with a disability uses “illegal” drugs, as defined by the Controlled Substance Act (CSA). As long as marijuana remains federally illegal under the CSA, employers will not be in violation of the ADA by refusing employment to those who use medical marijuana.

How employers can prepare to address marijuana

Employers who have not considered the potential implications of changing marijuana laws should contact a lawyer for advice. Employment law attorneys have can help employers update Human Resource policies to reflect a plan that’s right for the business and its employees.

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