State Marijuana Laws & Litigation Strategies For Employers

DISA Global Solutions hosted its first ‘Day with DISA’ drug testing symposium on October 29th. The symposium educated employers on the importance of staying up-to-date with ever-changing marijuana laws across the states. Although marijuana is illegal on the federal level, several states have chosen to legalize it for medical, recreational, or both purposes.

DISA welcomed Faye Caldwell, Legal Advisor & Litigator at Caldwell Everson PPL, to address the issues that employers face with the legalization of marijuana within the U.S. Faye covered a list of proposed laws, legal responsibilities, employee termination rights, and the American Disabilities Act (ADA). It’s important that employers create and maintain a drug testing program that properly addresses the marijuana laws within their state, which makes a clear and concise explanation of the companies’ rules, procedures, and repercussions when maintaining a drug-free workplace. Faye states, “You want your donors to stay negative; you don’t want them to inadvertently test positive because they didn’t understand your policy.”

During the presentation, Faye focused on three main topics: status and proposed legislation, employment protections, and litigation strategies. Here are a few important takeaways from the session to keep in mind:

Status and Proposed Legislation

• Marijuana is still illegal under federal law

• Medical marijuana is NOT a legitimate medical explanation under U.S. DOT drug testing regulations

• There are more than a dozen bills introduced regarding Federal marijuana and more than 50 state laws

Employment Protections

• Laws and degrees of protection vary by state

• There are generally 3 categories of employment protections

• Explicit Employment Protections

• Explicit No Employment Protections

• Unclear/Possible Protections Under Other State Law

Litigation Strategies

• To avoid litigation, you should:

• Know your workforce: location, position and safety issues, multi-state issues

• Know the law and your obligations

• Decide policy: be clear and consistent

A common question regarding medical marijuana is, “What should I do when an employee claims medical marijuana cardholder status?” The answer to that question isn’t clear-cut due to varying state laws, but you should ensure your process follows a decision tree and is done the same way every time. It’s also important to keep good documentation throughout the process.

Faye also noted that ‘laws do not entitle employers to determine the reason for a marijuana card,’ and it’s imperative that all information remains confidential and medical information is separated from disciplinary channels.

If a ‘bad thing’ happens, engage your legal department immediately. Identify fault in your company’s actions, prepare to resolve the issue immediately if you caused the loss, and most importantly, use the situation as a catalyst for improving your processes!

As the list of states that choose to legalize marijuana in some shape or form continues to grow, employers struggle to keep up. Faye provided the audience with best practices to address common issues, discussed individual states’ different marijuana protocols, and helped them build a clear and consistent drug testing policy.

Are you an employer and still have questions regarding employment screening?

DISA can help! Get answers directly from DISA’s subject matter experts with ‘Ask DISA’

Visit www.askdisa.com to ask your questions today.