Hardwood Flooring February March 2018

BUSINESS BEST PRACTICES LEGAL

Twenty-nine states and the District of Columbia have legalized medical marijuana, and eight states plus the District of Columbia have legalized the recreational use of marijuana. However, marijuana use remains illegal under federal law. The conflicts between state and federal laws raise numerous questions for employers, such as whether an employer must accommodate an employee’s workplace or off-duty use of marijuana, whether an employer may enforce a drug-free workplace policy, and how to respond to state laws allowing the use of marijuana in light of federal law prohibiting such use. Below are some answers to questions most frequently asked by employers struggling with these and other issues. The Legalization of Marijuana and How it Impacts the Workplace

BigStockPhoto ©

1. How can states pass laws allowing for medical and recreational marijuana if marijuana is illegal under federal law? Under federal law, marijuana remains classified as a Schedule I drug under the Controlled Substances Act (CSA) and is illegal for any purpose. Even though marijuana is illegal for any purpose under the CSA, the enforcement of the CSA is within the discretion of the federal government. Under the Obama administration, federal agencies such as the Department of Justice deemphasized the enforcement of marijuana laws in states with medical marijuana laws. However, on Jan. 4, 2018, President Trump’s Attorney General, Jeff Sessions, announced his intention to place more emphasis on enforcement of federal marijuana laws in these states. 2. Under current state marijuana laws, can employers still test for marijuana? Yes. There generally are no restrictions limiting an employer’s ability to drug test for marijuana, although employers may be limited in possible disciplinary action that may be taken, based on state laws. 3. Do I have to accommodate an employee’s use of medical marijuana? Generally, no. Under the laws of most states that allow for medical marijuana, employers are not required to accommodate employees’ use of medical marijuana. In addition, many state courts have found that employers may apply zero tolerance policies and terminate an employee for even off-site, after-work use of medical marijuana. However, in some states, medical marijuana may be protected by statutes prohibiting employers from discriminating against employees for their use of medical marijuana. Some states may also require employers to engage in an interactive process with the employee to determine if the employee can safely perform his or her assigned duties. Employers should consult with legal counsel before taking adverse action against employees’ use of medical marijuana. 4. Do I have to accommodate an employee’s use of recreational marijuana? Again, generally, no. Employers are not typically required to accommodate employees’ use of recreational marijuana,

34 hardwood floors www.hardwoodfloorsmag.com