State Marijuana Laws & Litigation Strategies For Employers


DISA Global Solutions hosted it’s very first ‘Day with DISA’ drug testing symposium on October 29th, which 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 either medical, recreational, or both.

If you didn’t get the opportunity to attend the Day with DISA conference, or if you would like to review this presentation again, you can download or watch it using the link below.

>> To View Faye’s Full Presentation, Click Here <<

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 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 for 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 make sure 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 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 if there’s fault from your company’s actions, prepare to immediately resolve the issue if you caused the loss, and most importantly, use the situation as a catalyst for improving your processes!

As the list of states who 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 state’s different marijuana protocols, and helped them build a clear and consistent drug testing policy.

>> To View Faye’s Full Presentation, Click Here <<

Read about other presentations from Day with DISA:

2019 Owner Survey: Employee Screening Trends & Best Practices

Creating a Drug Free and Safer Workplace

Designing a Program That Works with Your Marijuana Laws

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

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About DISA Global Solutions

Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.

DISA Global Solutions aims to provide accurate and informative content for educational purposes only and does not constitute legal advice. The reader retains full responsibility for the use of the information contained herein. Always consult with a professional or legal expert.