Zero Tolerance and Medical Marijuana

Employers (and the courts) “continue to wrestle with issues involving ‘zero tolerance’ drug testing policies and whether employers must accommodate medical marijuana use by their employees.  Marijuana use is illegal under the federal Controlled Substances Act, and therefore does not need to be accommodated under the federal Americans with Disabilities Act (ADA).”  However, currently 15 states have legalized some form of medical marijuana use.  Each state’s laws differ, so the courts have to interpret state law issues on a case-by-case basis.

“There are many sound reasons for employers to have zero tolerance policies and engage in drug testing of applicants and/or employees” including requirements by customers, government contracts, federal and state laws, workplace safety, productivity, liability, health and absenteeism.  Companies should review their policies and make sure that illegal drug use under both federal and state law is prohibited.  Policies should also prohibit any detectable amount of illegal drugs in an employee’s or applicant’s system, as opposed to an “under the influence” standard.

Marijuana advocates have tried to push medical marijuana laws into the workplace.  Although the most recent attempt in Washington was defeated, there is little doubt that they will continue to try to amend state laws.  Employers should continue to monitor legislative and legal developments and adjust their policies as needed to comply with current conditions.

From Employee Benefit Plan Review, May 2011 issue, pp. 6-7.