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As Marijuana Shops Outnumber Coffee Houses, What Should Company Policies Be?

Businesses are so concerned about marijuana that the San Francisco Business Times has assigned a reporter to the “cannabis” beat.

Consider the above, plus other facts, as your clients develop regulations about the use of marijuana by employees:

  • In Denver, where marijuana is legal, there are more medical marijuana shops than there are Starbucks.
  • Use of marijuana is growing more rapidly among people over 50 than among younger age groups.
  • Twenty-nine states have medical marijuana laws, and eight states plus the District of Columbia allow recreational use. More are expected to follow suit.

Moody Insurance Agency, based in Colorado where medical and recreational marijuana is legal, presented an excellent seminar on the topic earlier this year. Here are some considerations:

Conflicts between local and federal law

  • Marijuana is still illegal under federal law, and federal law does not require employers to accommodate medical marijuana use. State laws and privacy issues, however, can be considerations.
  • Federal law requires organizations with federal contracts of more than $100,000 and all agencies with federal grants of any value to provide a drug-free workplace.
  • U. S. Department of Transportation regulations state that marijuana use is unacceptable for safety-sensitive positions, including pilots, bus and truck drivers, and armed security personnel.
  • OSHA gives employer a “general duty” to maintain safe working conditions.
  • At the same time, OSHA’s “anti-retaliation standard” prohibits blanket drug and alcohol testing.
  • Some state and local governments forbid workplace testing unless it is required by state and federal regulations.
  • In states where marijuana is legal, prohibiting use when an employee is off-duty is problematical. Litigation is pending. In Colorado, state law prohibits employers from firing employees for use of marijuana.

If a company uses drug-testing

  • A urine test can be used only to determine whether someone has used marijuana in the past – as opposed to whether the person is currently impaired. Urine tests can give positive results as long as two weeks after marijuana use.
  • A blood test is the only reliable test for whether someone may be impaired by marijuana. The typical standard is 5 nanograms per milliliter of blood; however, there is some disagreement on the appropriate limit. Each test costs about $300.
  • It is illegal to test people for marijuana before making a job offer. It is, however, legal to make an offer contingent on passing a drug test, including use of marijuana.
  • Blanket policies requiring employees to submit to a drug and alcohol test if they are involved in a work-related accident are illegal.
  • Random drug testing is legal if it is truly random. The Supreme Court ruled in favor of company that dismissed a worker for using medical marijuana because he had been advised there would be random drug testing.
  • Testing also is allowed if there is a specific reason to believe that an employee is impaired by the use of marijuana or other drugs. In order to require a test, three people trained in substance abuse recognition must agree in advance that there is probable cause for the test.
  • A clear policy on when marijuana use is allowed and how to evaluate for impairment must be widely distributed and carefully explained to all workers. It is insufficient to ask a worker to sign a statement that he has read the employee handbook.