Cannabis legalization is sprawling throughout the country. More than thirty-five states have authorized medicinal marijuana, and sixteen states authorized recreational use of marijuana. However, federal law still recognizes marijuana as a Schedule I Controlled Substance despite most states having legalized marijuana. Consequently, the tensions between the federal laws and states’ laws place many employers in an awkward position. More specifically, companies that receive federal contracts or grants may need assistance in complying with the Drug-Free Workplace Act and how to avoid discriminating against employees who use medicinal marijuana for a qualified disability. This article will provide tips on how to navigate this legal minefield.
The Drug-Free Workplace Act of 1988 (41 U.S.C. 81) is a law that limits drug use in the workplace. This act applies to companies with federal contracts valued at over $100,000, and it applies to all companies that receive federal grants. To comply with the DFWA, the federal contractor or grantee must agree to (1) publish a drug-free workplace policy that notifies prohibition of the manufacture, distribution, dispensation, possession, or use of a controlled substance in the workplace; (2) establish a drug-free awareness program; (3) require that each employee engaged in the contract is provided the drug-free workplace policy; (4) impose a sanction on, or require satisfactory participation in a rehabilitation program by any employee who is convicted of a drug offense; and (5) make a good faith effort to continue to maintain a drug-free workplace.
Employers may believe that the easiest way to comply with the Drug-Free Workplace Act is not to hire anyone that uses marijuana regardless of the kind of use. This, however, is likely not the best strategy. Currently, Washington, D.C., Maryland, and Virginia allow the use of medicinal marijuana. Virginia’s new law (effective July 1, 2021) expressly prohibits employers from discharging, disciplining, or otherwise discriminating against employees that lawfully use medical marijuana while away from the job. While Maryland has not yet expressly prohibited the same, Maryland’s statutory language may imply prohibition because it states that patients may not “be denied any right or privilege, for the medicinal use of cannabis.” As for D.C., it is currently drafting legislation to prohibit workplace discrimination for medical marijuana use.
The next obvious questions for employers are: well then, what are my options? How do we comply with the DFWA and avoid violating local laws protecting individuals’ use of medicinal marijuana? To answer these questions, is it imperative for employers to understand three often misunderstood things: (1) the DFWA provides employers with a high level of discretion; (2) the DWFA does not apply to employees who are not directly engaged in the performance of the federal contract or grant; and (3) the DFWA does not require drug testing or even expressly prohibit use of legal narcotics. Even though drug testing is a tool used by many employers for many reasons, it is not necessary to maintain DWFA compliance. Further, even if an employer decides to drug test its employees, DFWA does not require positive drug test reporting. In fact, the only reporting requirement is to report when an employee is convicted of a drug offense occurring at the workplace. Finally, DWFA governs marijuana use while at the workplace and does not govern the use of marijuana outside of the workplace. Of course, it is absolutely prohibited for employees to report to work intoxicated, which will be appropriate to discipline accordingly. However, as an example, if Employee A uses his prescribed marijuana on Saturday and reports for work on Monday, then DWFA may not apply.
Employers should consider removing preemployment drug testing to avoid eliminating or discriminating against an otherwise qualified candidate. Depending on how often an individual uses medicinal marijuana, THC is detectable up to 90 days via hair follicle test, 60-75 days via blood test, and 30-45 days via urine test. Consequently, any fit candidate that used medicinal marijuana for a qualified disability within three months of seeking employment could be overlooked. Thus, employers should think about drug testing on a needed basis such as when it is reasonably suspected that an employee is using drugs at the workplace or appears to be intoxicated. Some indications of marijuana intoxication may include, but not limited to erratic or unusual behavior, an accident while at the workplace, or difficulty with conversing.
In short, it is possible to comply with DWFA and avoid discriminating against employees for using medicinal marijuana. Prior to disciplining or discharging any employee for marijuana use, it may be in the employer’s best interest to seek guidance from qualified couns