With so much confusion about dealing with cannabis laws, this article from Fisher Phillips came to our attention that lists 8 questions employers should ask. While this is a summary of the article we encourage you to read the article in its entirety.
What’s New at the Federal Level
In a move that’s been contemplated for years, the federal government rescheduled FDA-approved products and state-licensed medical marijuana products from Schedule I to Schedule III earlier this year. While other cannabis products remain on Schedule I, administrative hearings were just held to consider broader rescheduling to Schedule III. Here’s the significance under the Controlled Substances Act:
Schedule I means the substance has no accepted medical use and a high potential for abuse (substances include heroin, LSD, and peyote).
Schedule II means the substance has some accepted medical use but a high potential for abuse (like fentanyl, oxycodone, and methamphetamine).
Schedule III means the substance has a moderate to low potential for physical and psychological dependence, and a lower potential for abuse than Schedule I or II (this includes Tylenol with codeine and ketamine).
The Legal Significance: While many things won’t change due to the rescheduling, like Department of Transportation rules requiring drug testing for covered drivers, we do expect to see employees who are registered medical cannabis users in their respective states to seek accommodations and challenge related adverse employment actions under the Americans with Disabilities Act (ADA).
Historically, these claims were brought under state disability laws and rejected under the ADA, since cannabis was illegal under federal law. But plaintiffs’ attorneys will surely test this theory now that medical cannabis products have been rescheduled, particularly in states where medical cannabis use does not have employment protections.
“Employers that continue to conduct pre-employment cannabis screening should consult with legal counsel before declining to hire someone with a medical cannabis card or positive test result, and should identify which positions raise safety-sensitive concerns,” says Kristin White, Co-Chair of FP’s Workplace Safety and Catastrophe Practice Group and Partner in the firm’s Denver office.
Kirstin R.B. White Quote
This patchwork of state laws makes compliance challenging for employers – but an important thing to remember is that you do not have to tolerate on-the-job impairment anywhere.
8 Questions Employers Should Ask Now
So, what does this all mean for your workplace? A variety of factors will shape your drug-testing policies, including your industry, location, job types, and workplace culture. Here are eight key questions you should consider when developing your policies in light of evolving cannabis laws:
- Will you continue pre-employment drug screening? Depending on the nature and location of the business and legal prohibitions, employers may opt to drop cannabis from the drug-screening panel. However, state and federal laws may still require that cannabis (specifically THC) be included in drug screening for certain positions, like interstate drivers. (We want to know whether you test for cannabis in the pre-hire process! Take our one-minute FP Flash Survey here.)
- Will you create a different policy for safety-sensitive positions? Some employers may opt to eliminate THC – the psychoactive component in cannabis – from pre-employment screening for some roles, such as office jobs, but continue screening for safety-sensitive roles, like forklift drivers and machine operators. Of course, such policies must be applied consistently and comply with applicable state and local requirements.
- How do you handle cases of reasonable suspicion? Consider developing clear guidelines on how to detect cannabis impairment and what to do when an employee is suspected of working under the influence. Again, be sure that your policies align with workplace safety, drug screening, and anti-discrimination laws.
- Do you have a clear disciplinary policy? What will the consequences be for violating company policy on cannabis use and other policies on having cannabis, cannabis-derived products, or paraphernalia in the workplace?
- Have you trained managers? Consider training managers and frontline supervisors on how to observe, respond to, and report possible on-the-job use of cannabis.
- How do you handle positive cannabis test results? Do you have an internal process for employees to dispute the results of an investigation or drug test? What steps are in place when a job candidate tests positive? Do you have a plan to explore reasonable accommodations with authorized medical cannabis patients?
- Do you want to create a single policy that is compliant with all states where you operate or separate policies based on specific state and local rules?
- Have you consulted legal counsel? Consider having an attorney review your policies and walk you through your options following a positive drug test. It’s best to reach out to counsel before taking any adverse action to ensure you’re complying with all applicable requirements.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about how to save a life with your drug testing policies, Mr. Randisi can be contacted by phone at 410.336.0287 or Email: info@randisiandassociates.com or the website at randisiandassociates.com
