Companies Face Potential Problems As Medical Marijuana Becomes More Common

By 2016, more Americans will live in states permitting medical marijuana than in those territories maintaining the federal ban on cannabis usage.

Today, twenty-one states plus the District of Columbia make medical marijuana available to patients with a physician’s recommendation, since federal law prohibits prescribing marijuana.

The Controlled Substances Act of 1970 classifies drugs with potential for abuse into five schedules. Schedule I is reserved for the worst of the worst, including heroin, LSD and marijuana. According to the federal government, marijuana must remain on Schedule I because it has a high potential for abuse, no accepted medical use for treatment in the U.S. and is not accepted as “safe” for use under medical supervision.

HR leaders may wonder how federal and state law can differ so wildly on the harmfulness of marijuana.

According to Curtis Graves, Esq., Attorney, Mountain States Employers Council, “the answer seems to be that the Nixon Administration put marijuana on Schedule I and it has remained there ever since due to further parsing of the term “accepted medical use” by a former DEA administrator.”

More and more employees are using marijuana with their doctors’ blessing, and employers need to know what to do about it.

Graves says HR leaders should consider:

  • What does the law permit them to do
  • What do they want to do about medical marijuana use and why

Almost every employer can agree that they don’t want employees coming to work stoned, but what about employees who use marijuana on their own time? A Urinalysis test can detect marijuana use that occurred more than a month ago. Does the company want that information, and what will managers do with it if they have it?

In most cases, employers may adopt zero-tolerance policies toward marijuana use for whatever reasons they wish, but it makes the most sense when employees are engaged in safety-sensitive occupations.

If an employee is operating heavy equipment, driving a vehicle or forklift on the company’s behalf or is otherwise in a position that has the potential to injure someone, then the sanctity of their off-duty activities should be the least of an employer’s concerns.

In these situations, aggressive, random testing is appropriate if permitted by the company’s state laws.

However, Graves warns, if someone works a desk job for a living, or is otherwise unable to harm someone else if they come to work hung-over from the previous evening, assuming state law permits it, employers can test these employees aggressively as well.

Employers should also consider, that at a certain point, their company may be saddled with a reputation as an employer that people prefer not to work for.

The question regarding what to do with an employee using medical marijuana on their own time with a doctor’s recommendation—is largely up to the company.

Graves recommends checking the company’s state laws, but in most cases, nothing prevents employers from taking any action they wish, from ignoring the test results, to rehabilitation, to termination.