Rocky Mountain High: How Legalization of Marijuana Affects Your Employees
There’s currently a lot of confusion and controversy about what it’ll mean for employers as states continue to legalize marijuana. First, let’s be clear. Marijuana is currently legal, in some form, in 23 states and the District of Columbia with another 15 states having pending legislation. However, it’s still classified as a Schedule 1 drug under Federal law, which means it’s illegal. Clear as mud, right?
The current attitude of the Obama administration is a “hands-off” approach by not pursuing prosecution of marijuana users. This position could change in 2016 depending on the new presidential administration or congressional legislation. But for now, the feds are turning a blind eye if you’re in a state where lighting up is legal.
So, what should an employer do to regulate their employee’s use of marijuana? At a minimum, employers in all 50 states and the District of Columbia can regulate an employee’s use of marijuana by prohibiting its possession and use at work and prohibiting employees from reporting to work impaired or under the influence. For example, alcohol is legal to buy and possess but it can still be prohibited at work. Since marijuana’s still illegal under Federal law, employers can have a zero-tolerance policy and the courts will probably uphold their right to terminate (Coats v. Dish Network, Colorado Ct. of Appeals, 2013). Still, the cost to defend a wrongful termination suit can be very expensive and should be considered.
Employers should review their substance abuse and safety policies to make sure the restrictions with marijuana use are consistent with the jurisdictional restriction and consult an attorney. Also, remember that whatever course of action an employer takes, be consistent in the application of company policies for every employee. At the end of the day this issue will continue to expand, and with significant revenue generation potential, states will continue to legalize marijuana. The earlier an employer addresses this issue, the better off they will be.
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