For most of the past century, the policies of U.S. employers on marijuana use by employees were clear: zero tolerance. Backed by federal and state laws, employers routinely terminated—with no questions asked—the employment of any individuals who failed a drug test for marijuana.

Presently, 33 states and the District of Columbia have legalized the use of marijuana whether for recreational or medical purposes, or both. Each of these states has a unique set of marijuana regulations, parts of which vary significantly from those of other states, and all such laws currently stand in stark contrast with federal law, which continues to treat marijuana as a controlled substance. Further complicating matters, there are numerous federal laws, such as the Motor Carrier Act and the Drug-Free Workplace Act, that regulate the use of marijuana in the workplace and may conflict with state law.

For employers—especially those in safety-sensitive industries such as construction—the current situation poses a significant dilemma. How can they develop, implement and enforce medical marijuana policies that ensure a safe workplace without running afoul of employees’ rights?

Marijuana: A “Growing” Industry

By 2017, the cultivation, packaging, distribution, and retail sale of marijuana was a $20 billion industry. In 2019 alone, recreational and medical marijuana has accounted for approximately $52 billion in sales to date.

Twenty percent of the U.S. population now lives in one of the 11 states that, along with the District of Columbia, allow both recreational and medicinal use of marijuana. Adding the remaining 22 states to this figure, the total number of Americans living in jurisdictions that allow marijuana as a form of medical treatment jumps to nearly two-thirds of the population.

Four additional states have proposed medical marijuana legislation that has yet to go into effect: Alabama, Georgia, Mississippi and Texas. When and if these laws are implemented, there will be more states with some form of legalized marijuana use than the number needed (38) to pass an amendment to the U.S. Constitution.

Simply put, legal marijuana is here to stay, and employers must address how its presence affects their drug-testing policies.

Zero Room for Zero Tolerance

For employers, traditional zero-tolerance policies present a liability risk, as such policies fail to take into consideration the fact that, in certain states, employees can lawfully use marijuana to treat legitimate illnesses.

While the Americans with Disabilities Act (ADA) explicitly excludes current drug users from being qualified to bring a federal discrimination claim (the U.S. Court of Appeals for the Fifth Circuit stated, in deciding Gulf Coast Indus. Workers Union v. Exxon Co., U.S.A., that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs”), some states allow medical marijuana users to bring a state claim for discrimination against an employer who terminates those individuals based on lawful marijuana use. Further, federal law enforcement authorities—despite delivering inconsistent messages in recent years—have shown little inclination to pursue growers, distributors, prescribers, and users of medical marijuana.

To limit potential liability, construction-industry employers must understand the laws of the states in which they have operations, employees and contractors, and prepare medical marijuana policies that are both strong and flexible.

Take It State by State, Step by Step

A construction company’s first step should be to gain a clear understanding of the relevant state laws. States vary considerably in the specific medical conditions for which medical marijuana is an approved treatment, the types of medical marijuana (inhalants, oils, edibles, etc.) that can be used, and the ways in which employers can treat employees using medical marijuana.

To this latter point, some states, such as Washington, Florida and South Dakota, focus on protecting employers and prohibit disability claims based on marijuana use. Other states, such as Arkansas, Illinois and Arizona, specifically protect employees and prohibit employers from discriminating against individuals who are lawfully using medical marijuana. Still other states are altogether silent on the issue of discrimination with respect to employees; Massachusetts and Louisiana can be counted among these.

Even where laws are silent as to employee protections, medical conditions that are treatable with medical marijuana are also generally viewed as disabilities. For example, in a 2017 case, Barbuto v. Advantage Sales & Marketing LLC, an employee who was terminated after testing positive for marijuana that was being used to treat her Crohn’s disease was allowed to proceed with her claim under Massachusetts’ antidiscrimination law. Of particular note, the state’s high court reasoned that employers have a duty, after a positive test for marijuana, to engage in the interactive process to determine if the employee in a non-safety-sensitive position poses a risk to the health and safety of others and if a reasonable accommodation is available.

Following the analysis of relevant state laws, employers and their counsel should develop and document policies on medical marijuana that are consistent, protect privacy and confidentiality, offer reasonable accommodations, and justify any discrepancies in treatment of employees in different job positions. In identifying positions that are particularly safety-sensitive, employers may draw on federal drug testing laws such as the aforementioned Federal Motor Carrier Act and the Occupational Safety and Health Act to make such determinations. Employers should present employees with written versions of these policies and require signatures indicating that the policies have been received, read, understood, and accepted.

When an employee does test positive for marijuana use, do not jump to conclusions or respond prematurely. Engage in the interactive process to determine whether the marijuana use is medically justified and/or prescribed, whether the employee’s role is safety-sensitive, and whether the timing and amount of marijuana used presents the possibility of intoxication while performing job responsibilities.

At every step, employers are advised to seek the advice of knowledgeable legal counsel. While policies and approaches to medical marijuana must be strong, they must also be flexible.