Marijuana Regulation at Work: Your Responsibilities
Marijuana Regulation at Work
Understandably, marijuana regulation at work has been a topic of much discussion in the media and at the state and federal regulatory levels over the past few years. With 8 states that have approved the use of recreational marijuana and 18 states permitting the use of medical marijuana, it’s critical for companies operating in these areas to understand their legal responsibilities and how to deal with cannabis use at worksites. Today, we’ll clarify the complex rules applied at the state and federal levels to provide this much needed clarity to companies and ensure compliance with OSHA regulations.
State and Federal Usage Regulations
For starters, there’s a wide variation in the allowance of cannabis use from state to state, and at the federal level, marijuana is still considered to be a Schedule 1 drug. Due to this gray area, companies with high risk operations may still be required to prohibit its usage, even if its use is allowed at the state level.
Recreational use of marijuana is currently permitted in the following states:
- Washington D.C.
Controlled Substances Act
At present, the US Department of Justice reserves the right to prosecute those persons who distribute marijuana, even for medical reasons. However, the Justice Department has deferred its right to prosecute and instead expects states where cannabis use is legal to strictly adhere to and enforce the laws surrounding its usage. At this time, marijuana remains on the Schedule 1 list of drugs under the Controlled Substances Act due to its possibility of dependency and lack of accepted medical use at the federal level.
With conflicting applications of the law on marijuana use both recreationally and medically, where do companies stand in terms of applying the laws to their operations and to avoid discriminating against their employees? The guidance given to employers, particularly those in the construction and energy sectors as well as other high-risk industries, is to prevent employees from working while impaired through the use of marijuana. To clarify, marijuana use has been largely prohibited for companies whose work is covered by federal regulations, such as the Department of Transportation or those under federal contracts. This means that employees with professions under DOT should not be found to be under the influence of marijuana, such as:
- Bus and truck drivers
- Subway operators
- Ship captains
Note, this list is non-exhaustive and can extend to maintenance personnel for vehicles in aviation, marine and land transportation as well as other professionals under DOT.
For those employees who have been prescribed marijuana for medical purposes, it is unlikely that the Americans with Disabilities Act could apply in this case because cannabis is still considered illegal at the federal level. However, employment laws may vary by state, so it’s best practice to seek further legal advice before introducing policies and procedures that enforce a zero-tolerance policy to marijuana use. Ultimately, it is an employer’s responsibility under OSHA to provide a safe place of work for all employees and to avoid allowing employees to work on a job site where the risk of injury can be high while they are impaired due to improper usage. Therefore, companies instituting drug and alcohol policies as well as drug screening for employees may well be within their right to do so in order maintain workplace safety.
Regardless of your state of operation, it's best to have a clear policy on marijuana use both onsite and offsite in order to avoid any situation that may compromise a safe working environment. In general, companies should outline a limit of 5 ng/mL of THC in serum or plasma in their drug procedure and inform employees that persons will be obliged to submit to a drug screening test upon hire, at regular intervals throughout their employment as well as in the case where impairment is suspected.
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