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High stakes for marijuana use

Operators face evolving legal environment around testing employees

If restaurant operators seem a little dazed and confused these days, it’s likely not because of anything they’ve been smoking, but rather because they are lost in the nation’s complex patchwork of state and local marijuana laws.

Employers seeking to operate drug-free workplaces are faced with a daunting puzzle of moving parts when it comes to the rapidly changing regulations around the use of cannabis. More than half of all states now allow the use of marijuana for medicinal purposes, and eight states have legalized it for recreational use, with more expected to follow suit. 

In states where marijuana is legal for recreational use, employers can treat it in much the same way as they treat alcohol, said Kathryn J. Russo, an attorney in the Melville, N.Y., office of Jackson Lewis PC. 

“You don’t have to allow [employees] to be intoxicated at work,” she said. 

Employers who suspect an employee may be under the influence of marijuana still have the right to enforce their policies, she explained. However, while a test for the alcohol level in a person’s blood can prove intoxication, tests for marijuana aren’t specific enough to prove whether a person is actually under the influence at the time of the test because users can test positive for days or weeks after the effects have worn off. 

But testing may still bolster an employer’s case against an employee suspected of being under the influence at work, according to Russo. 

“If the employer had reasonable suspicion based on the employee's behavior that they were possibly under the influence of drugs or alcohol, and then they tested them and it was positive, I think that's a more compelling case for termination,” she said.

Variation among medical marijuana rulings

Medical marijuana use presents a more complicated situation. Recent court cases in Connecticut, Massachusetts and Rhode Island have ruled, in essence, that an employer must accommodate a worker who uses medical marijuana away from the workplace.

“Before those three cases, all of the court cases went in favor of the employer, and the employer always prevailed,” Russo said. “Now, we're starting to see that change a little bit.”

In one of those cases, a court in Rhode Island found that an employer discriminated against a job applicant who used marijuana legally to treat severe migraines when it rescinded her job offer after she tested positive. The woman, who was applying for a paid internship, was defended by the American Civil Liberties Union.

In addition to barring discrimination based on medical disabilities, Rhode Island law specifically bars discrimination based on the legal use of medical marijuana (although employers may bar marijuana use in the workplace), according to the ACLU. 

Because laws about accommodating medical marijuana use vary by state, employers need to be aware of the wording of the statutes in each state in which they operate. When California legalized marijuana, for example, the state specifically addressed employers’ rights to maintain a drug-free workplace by allowing employers to refuse to hire and to terminate employees who test positive for marijuana, even for medical purposes, according to Danielle Moore, an attorney in the San Diego office of Fisher & Phillips LLP. 

“Ironically, as liberal as California is, its statute, when it passed, was pretty conservative,” she said, adding that she does not believe the law there will change anytime soon.

She said that overall she expects that states to become increasingly liberal around marijuana regulation, meaning that employers may need to be prepared to accommodate workers who use marijuana for medical purposes. 

Safety concerns remain paramount

For employers, safety should be the primary consideration when deciding whether or not to screen for marijuana use. Some observers said that most restaurant positions probably do not pose a significant safety risk, while others said some restaurant positions could be considered more dangerous. 

“You have to look at how much risk are you willing to take, and that usually depends on what the person's job is,” Russo said. 

But some companies are backing away from testing altogether for the simple reason that it is eliminating too many potential employees, according to Moore. The challenge is exacerbated by the strong economy and low unemployment levels.

Employers need to be careful when crafting their policies around marijuana use, however, because it is still prohibited at the federal level. Moore said companies that remove marijuana screening from their drug-testing panels should not have any rules explicitly stating that they approve of marijuana use. 

“I don't like the idea of putting that stance into the anti-drug policy, because then you are essentially admitting in writing that you're not following federal law, which makes me uncomfortable,” she said. “But I have quite a few clients that are still maintaining their policy but subtly taking marijuana off of the panel for their drug testing.” 

Testing also comes into play when employees who are injured on the job seek to collect worker’s compensation benefits. Most states allow employers to use drug test results to establish the presumption of intoxication or impairment, according to a recent research report on the topic by Sarah Sullivan, risk control services coordinator at Lockton Cos., an insurance and risk management consulting firm. 

At least 10 states have specific procedural requirements that must be followed exactly in order for a drug test to be used to bar workers’ compensation benefits, Sullivan said in the report. 

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