In The Weeds

Approaches to marijuana in the workplace in a post-pandemic labor market

An applicant for a new position discloses that she holds a state-issued medical marijuana patient card during her interview. The applicant goes on to explain that she is a recovering opioid addict, who developed severe anxiety during the pandemic, and that medical marijuana helps with her condition.
 

In this discussion, the candidate — who is well-qualified for the position and who was the only applicant to arrive for an interview — asks your company for a reasonable accommodation from its substance abuse policy to allow her continued off-duty use of marijuana.

Human resources practitioners in the post-pandemic era encounter these situations daily; and although these issues are not novel, the surrounding context — a labor economy, where two positions exist for every unemployed worker, a marked increase in substance abuse, and the prevalence of recreational and medical marijuana across the country — has prompted employers to reconsider their substance abuse policies and compliance efforts under the Americans with Disabilities Act (ADA).

This article outlines employer best practices in workplace marijuana regulation and substance abuse detection.

The ADA and Substance Abuse: A Refresher

The ADA’s prohibition against disability discrimination is broad and decidedly reaches substance abuse disorders. As it relates to medical examinations and inquiries — an issue closely regulated under the ADA — the ADA undoubtedly allows employers to test employees for both alcohol and illegal drugs; however, the law does not treat all substance disorders alike.

While both recovering alcoholics and recovering drug users are protected under the ADA’s prohibition against discrimination because of a record of a disability, active alcoholics can be regarded as “disabled” under the ADA, while active users of illegal drugs cannot. Why? Because alcohol is not an illegal substance.

Following this logic, the ADA protects active alcoholics, who are not in recovery (so long as they are not drinking at work), entitling them to reasonable accommodations like unpaid leave to attend a rehabilitation program. However, the ADA does not require employers to reasonably accommodate current unlawful drug uses because the use of illegal drugs and the unauthorized use of legal (prescription) drugs are both unlawful.

Now the question many employers are facing is, "Does the ADA consider marijuana an illegal substance?"

The Changing Legal Landscape of Marijuana

Many jurisdictions with some form of legalized marijuana prohibit discrimination against off-duty marijuana use. In New York, for example, where recreational and medical cannabis use are legal, employers are prohibited from testing current and prospective employees for the presence of marijuana absent a special circumstance. Other legal states, such as Nevada, prohibit job denial based on a positive cannabis test result.

Despite these state-level protections, marijuana is still classified as an illegal drug under the Controlled Substances Act. Additionally, the Drug Free Workplace Act still requires certain federal grant recipients and contractors to adopt “zero tolerance” drug and alcohol policies and the U.S. Department of Transportation’s (DOT) regulations require testing for all so-called “safety-sensitive” positions. The DOT’s regulations wholly reject the use of medical marijuana, even if approved under state law, as an explanation for a positive drug test result.

Under the ADA, federal law is surprisingly clear: Employers need not reasonably accommodate employees using marijuana under the ADA, regardless of whether the employee has a medical marijuana patient card. Disclosure of this status, like in the opening hypothetical, can certainly place an employer on notice of an underlying condition; however, active marijuana users, including patients with medical marijuana cards, are “current” drug users under the ADA and beyond the sweep of its protections. Therefore, they are neither “qualified individuals with disabilities” nor entitled to any reasonable accommodation — at least not solely due to their status as a medical marijuana patient.

What constitutes “current” use of marijuana, however, is much less clear. In some cases, a drug screen can detect marijuana as long as 100 days after ingestion. Courts are not particularly convinced that urinalysis can truly prove whether an individual is “under the influence.” And following the passage of the 2018 Farm Bill, which legalized the production and sale of hemp-derived products, such as delta-8 THC, the question of whether a substance qualifies as marijuana is also unclear.

Contemporary drug screening technology is not sophisticated enough to differentiate between legal delta-8 THC found in hemp and regulated delta-9 THC found in marijuana — both of which reportedly have similar psychoactive effects — and employers are frequently presented with claims of “false positive” test results accordingly.

How to Update Policies to Address the Changing Landscape

To keep up with the shifting sands of marijuana legalization and substance abuse prohibitions in the workplace, employers should first consider modifying drug testing policies to permit “the use of drugs that can be legally prescribed under both federal and state law” rather than permit the use of “legally prescribed” drugs; and, in consultation with counsel, consider addressing marijuana explicitly, stating that marijuana is a prohibited substance, even if prescribed under a state medical marijuana law, because it remains illegal under federal law.

Second, employers should conduct a comprehensive position classification analysis to identify all safety-sensitive functions. What constitutes a safety-sensitive job function outside of the federal context (e.g., DOT-regulated workers) will vary from state to state. In Arkansas, for instance, carrying a firearm, performing life-threatening procedures and working with foods are among those duties that constitute safety-sensitive functions.

Mere access to confidential information is sufficient for a position to be classified as safety-sensitive. But most states, Arkansas among them, require a written designation that the position is safety-sensitive. Accordingly, employers should revise job descriptions to avail themselves of potential defenses under state law.

Third, because drug tests typically cannot identify active marijuana impairment, employers should revise substance abuse policies to account for circumstances in which reasonable suspicion exists to believe an employee is intoxicated at work. Indicia of impairment include changes in speech, agility, coordination, demeanor and odor, among others.

However, a policy alone is not enough. It is imperative that supervisors receive reasonable suspicion training, especially to avoid liability under a “regarded as” theory of ADA discrimination. Along with training, employers should develop reasonable suspicion observation forms that identify specific, objective and observable conduct.

Contemporaneous written observations, along with comprehensive reasonable suspicion training, should assist employers in supporting a good faith belief defense.

Finally, employers should continue monitoring state and federal regulation of marijuana and hemp-derived products. All but 13 states permit some form of recreational or medical marijuana sales, and the federal government has indicated an interest in removing marijuana from Schedule I of the Controlled Substances Act before the 2024 election cycle.

Until a national standard is adopted, employers must continue navigating the patchwork of state laws affecting marijuana in the workplace. Relying on fundamentals is key; and in all cases, employers should consult with counsel before modifying policies or taking an adverse employment action based on marijuana.

Author Bio

Abtin Mehdizadegan is a Partner in Hall Booth Smith’s Little Rock, Arkansas office and represents employers in traditional labor and employment law matters.