The who: 18 states and the District of Columbia.
The what: legalized medicinal use of marijuana.
While Colorado and Washington stole the show last November when the two states’ electorates approved ballot initiatives that legalized recreational use of the drug, many other states have addressed the issue and instituted state-supported medicinal marijuana programs.
Of those 18, one state’s law went into effect in 2013. Employers are fretting over the legality of their drug testing policies and procedures in relation to the new laws, which impact businesses on several levels.
Massachusetts OKs medicinal use
During last year’s election, the voters of Massachusetts went to the polls and approved Ballot Question 3, which legalized medical marijuana in the state. The law went into effect on January 1, and now businesses in the commonwealth will have to proceed with extra caution when screening employees and formulating drug use policies.
The new Massachusetts law includes language directly impacting how employers proceed with marijuana policies, clause D of Section Five reads: “Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment”
Employers can then take comfort in the fact that drug use on company premises does not have to be tolerated. However, the law does not address how employee drug testing programs may be affected, especially if an employee is terminated after testing positive for marijuana that he or she legally obtained and used.
Recent cases suggest private employer drug policies may trump legislation when it comes to an employee getting fired for using marijuana.
In Michigan, where medical marijuana is also legal, a Wal-Mart employee was required to undergo a drug test after being injured on the job. The employee disclosed that he had a registry card and used medicinal marijuana. One week after testing positive, he was fired and then filed suit against the company. Both a district court and a federal appellate court held Michigan’s law does not restrict private employer drug policies. While the situation is unclear in Massachusetts, the fog will likely rise once the state has more time to acclimate to the new legislation.
Drug testing employees remains a standard procedure among many employers, but state-level marijuana legalization efforts have certainly cast a haze over compliance. To be safe, businesses that administer drug tests should be sure to use screening services that are undertaken in complete respect toward the law.