Changing marijuana laws challenge employers

Jose?Klein, The Daily Record Newswire

Last month, the New York Times' editorial board declared that it was "high time" to end federal prohibition of marijuana. The announcement was newsworthy as the latest social indicator of changing public attitudes about marijuana usage and criminalization. However, for the Times' human resources department, the editorial stance in favor of marijuana legalization arguably has created more headaches than anything else.

Within 24 hours of the editorial board's announcement, the Huffington Post and other Internet sites ran stories about the Times' company policy of subjecting all new hires to a pre-employment drug screening that includes testing for marijuana metabolites. Additionally, a petition on change.org, urging the Times to make its internal policy consistent with its editorial board's views on the need to "end legal discrimination against people who use marijuana" has received over 5,000 signatures.

I mention this anecdote not to criticize the company's drug policy or to suggest that a newspaper's editorial board has any business dictating a large media company's personnel policy, but rather as an example of the way in which an employer can find itself pulled in mutually exclusive directions on the issue of marijuana.

Another example of the same phenomenon can be seen in the New Mexico Court of Appeals' 2014 decision in Vialpando v. Ben's Automotive Services. In the case, the court affirmed the decision of an administrative law judge ordering an employer to reimburse an injured worker for the cost of medical marijuana.

The court rejected the employer's argument that the administrative decision was illegal because the employer "would be required to violate federal law in reimbursing (the) worker for his medical marijuana expenses." Instead, the court reasoned, in light of the federal decision not to challenge Washington's and Colorado's voter-initiated decisions to legalize and regulate marijuana possession, production and distribution, it was appropriate to enforce the state's Compassionate Use Act by requiring the employer to reimburse the employee's medical marijuana expenses.

As states continue to relax marijuana laws, and public acceptance of marijuana continues to grow, these incongruous and internally inconsistent results will only become more common on the employment landscape.

Currently, 22 states and the District of Columbia allow for some form of medical marijuana. In November, Oregon is likely to become a state that allows for and regulates the production and sale of recreational marijuana. Other states are likely to follow suit. Indeed, according to the Pew Research Center, 54 percent of Americans favor legalization of marijuana.

So, how is an employer to respond? Unfortunately, there is no one-size-fits-all answer.

For many employers, if not most, compelling operational needs to strictly maintain a drug-free workplace will remain unchanged.

For example, employers that service federal contracts within the United States are subject to the federal Drug-Free Workplace Act; any relaxation in employer policy could jeopardize the contract. Similarly, employers that have employees performing safety-sensitive functions risk, among other things, potential liability on claims of negligent hiring or retention, were those employers to relax their marijuana policies and a workplace injury involving a marijuana-impaired employee were to occur.

Nonetheless, anecdotal reports suggest that in certain less-skilled industries and geographic areas, employers have challenges finding sufficient eligible applicants who can pass a pre-hire marijuana screening. In such circumstances, where there is not a specific safety or other operational need to safeguard against off-duty marijuana usage, it may make sense for an employer to tailor its policies on marijuana usage to capture on-duty impairment, but leave that employee to his or her own devices when off the clock.

As the law in this area is in a state of flux, employers are well-served to seek guidance from an employment attorney who can help develop a policy that meets the unique operational needs of the employer but also complies with operable laws.

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José Klein is an attorney with Barran Liebman LLP. He advises and represents employers on a wide range of labor and employment law matters. Contact him at 503-276-2199 or jklein@barran.com.

Published: Tue, Sep 02, 2014

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