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A grand total of eight states have new marijuana laws on the upcoming November ballot, ranging from recreational cannabis in California to restricted medical marijuana in Florida. And if small business owners aren't keeping an eye on pot referendums in their state, they should be.
If recreational weed is legal in your state, does that mean employees can have a toke at lunch? If a staff member has a prescription to treat an ADA-qualifying disability, can she use in the office? What happens to your small business's drug policy when state marijuana laws change?
Enforceable Workplace Policies
Jennifer Mora of Littler Mendelson P.C. doesn't see new marijuana initiatives like California's impacting and employer's right to prohibit marijuana use, pointing out that the law "expressly states in the 'Purpose and Intent' section that it is the intent of the Act to 'allow public and private employers to enact and enforce workplace policies pertaining to marijuana.'" Mora also points out that California courts have sided with employers who fire or refuse to hire someone who tests positive for pot.
Similar rulings have occurred in states that have already legalized marijuana, even for recreational use. The Colorado Supreme Court ruled that Dish Network was allowed to fire a quadriplegic telephone operator who failed a random drug test, despite the fact that recreational weed was legal in the state at the time, the employee had a medical marijuana prescription to treat his violent muscle spasms, he only used medical marijuana while he was off the clock, and the state even had a statute making it illegal to fire an employee for "engaging in any lawful activity off the premises of the employer during nonworking hours."
That and other cases have cited the federal prohibition on marijuana as protection for employers, so you're company drug policy is probably fine.
Crafting a Pot Policy
California's statute -- which is likely to pass, according to recent polls -- is clear in carving out an employer's right to maintain a drug and alcohol-free workplace and to have policies prohibiting the use of marijuana by employees and prospective employees. But not every state law may be as clear, and you'll want to be as transparent with your employees as possible regarding your business's drug policy.
If you need help crafting a company drug policy, or need updates in lieu of changing state drug laws, you should enlist the help of an experienced employment law attorney. You can contact one in your area today.