Among the host of sensitive tasks that an HR department has to handle, there’s one topic that seems to be coming up a lot more often. As medical marijuana continues to pass legislation to become legal across different states, HR experts and small business owners dealing with it themselves should be educated in the federal and state policies. If you require drug testing as part of your hiring process, this information might be especially interesting for you.

In a recent presentation at the SHRM Symposium from Current Consulting Group, the speaker took members of our HR team through how to navigate legalized marijuana in the workplace.

First, some stats.

In 2016:

  • Nine states legalized some form of marijuana.
  • Fourteen states amended existing marijuana laws.
  • USDOT lowered its random drug testing rate by 25 percent.
  • OSHA announced new rules impacting post-accident drug testing.

Here are some details.

According to Current Consulting Group’s presentation, nothing in the law limits an employer’s ability to discipline an employee:

  • For being under the influence of medical marijuana in the workplace.
  • For working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted in the position.

Further, an employer may not discharge, threaten, refuse to hire, or discriminate against an employee regarding his or her compensation, terms, conditions, location or privileges based solely on the employee’s status as an individual who is certified to use medical marijuana.

Employer policies.

Here are a few key things you need to know as an employer. First things first, legal protections for medical marijuana usage is different in every state. It’s important to review your specific area’s laws before changing or adjusting your drug testing policy.

Some states are revising their laws as well. These revisions include specific protections for employees that would ban discrimination and safeguard medical marijuana card holders.

As an employer, you can decide against hiring a prospective employee if that candidate is a medical marijuana user and there’s no rule for accommodation under your state’s law. That being said, you can’t take an adverse employment decision based on a person’s underlying condition.

Under the federal Controlled Substances Act, marijuana is still technically illegal.

Under the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973, employers can prohibit illegal drug and alcohol use in the workplace. Testing for the illegal use of drugs does not violate the ADA.

A special thanks again to the Current Consulting Group for putting on such a great presentation for our HR team. While this is certainly tricky territory for employers, it’s something we have to deal with.

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Disclaimer: Please note that this is not all inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding specific application of the information to your own plan.