Establishing an Effective Worksite Marijuana Policy

Bella FonsecaFebruary 15, 2022February 15, 2022

These days, the United States has a patchwork of marijuana-related laws and statutes that can leave employers feeling lost. In his session entitled “The Marijuana Problem” from the recent Institute for Apprenticeship, Training and Education Programs conference, Mark Belland, Esq., of O’Brien, Belland & Bushinski, LLC, reviewed the current state of these laws and identified some best practices for joint apprenticeship training committees (JATCs) that want to establish substance abuse policies. (For our readers outside of the multiemployer space, stick with me as a lot of these tips are still applicable!)

First, let’s do some level-setting. Per federal law, marijuana refers to all parts of the cannabis plant except hemp. The cannabis plant contains over 80 chemical compounds, including delta-9-tetrahydrocannabinol (THC)—the main psychoactive compound—and cannabidiol (CBD)—the main nonpsychotropic compound. THC is the compound measured through drug testing.

Federally, marijuana (including THC and CBD) is still considered a Schedule I controlled substance under the Controlled Substances Act (CSA), which makes processing or manufacturing it a crime. However, at the state level, several laws make marijuana use legal in various circumstances. At the writing of this blog, 18 states permit the use of medical marijuana, and 18 additional states plus Washington D.C. permit medical and adult recreational use and have decriminalized marijuana possession. Of the remaining states, 13 have laws that permit use of low THC products (hemp/CBD) or don’t permit use but have decriminalized possession, and one state—Idaho—has no marijuana laws. To add to the confusion, not all state laws are written alike. Some state laws address employment protections for off-site, off-work marijuana use by employees while others don’t. Additionally, some state laws include carveouts for safety-sensitive professions (e.g., CDL drivers, construction workers, medical professionals, public safety officers, etc.) in which employment protections do not apply. Lastly, regardless of what state laws might say, they are also subject to interpretation by the courts. In some cases, courts have determined that state laws preempt federal law; in other cases, courts rule the opposite.

So how is a JATC or employer supposed to sift through this information to develop an effective substance abuse policy addressing marijuana use? Belland offers several suggestions.

Drug Testing

Align any drug testing requirement with the collective bargaining agreement and any state laws. Drug testing is at the JATC’s or employer’s discretion; the Department of Labor does not require drug testing by apprenticeship programs or employers except in some circumstances when the work is federally contracted or funded and, therefore, governed by federal law.
Establish clear reasons for testing (e.g., pre-employment, reasonable cause, random, etc.).
Institute structured testing procedures, including identifying the type of test required (i.e., urine, blood, hair or saliva) and notifying apprentices/employees of testing requirements.
Have apprentices and/or employees sign testing consent forms.
Establish clear consequences for failed tests at both pre-employment and employment stages and identify if those consequences vary based on job titles or duties.
Keep drug testing results and related paperwork confidential and ensure that HIPAA privacy rules are not violated when communicating about results.

Medical Marijuana Accommodation

Determine whether valid medical marijuana use will be allowed and establish a process for considering accommodation requests.
Keep an apprentice/employee’s status as a medical marijuana patient confidential and stored appropriately.
Evaluate requests for accommodation on a case-by-case basis and fully exhaust the interactive process (modeled after the Americans with Disabilities Act) before denying a request or taking adverse action.

Lastly, Belland advises JATCs and employers operating in multiple states to be sure that their substance abuse policies comply with all applicable state laws.

With all these considerations in mind, JATCs and employers should keep their legal counsel on speed dial. As legal marijuana use continues to expand, JATCs and employers will need to stay vigilant and compliant with state and federal laws to avoid potential lawsuits.