Overview: Substance abuse in the workplace may lead to an increase in avoidable on-the-job accidents, decreased productivity and potential negligent retention/supervision court claims. However, employers need to understand their legal rights and responsibilities under federal, state and local law with respect to employee drug testing and discipline.
Employers must ensure that their employee discipline policies and procedures allow for flexibility in addressing substance abuse problems in the workplace. Although an employer may choose to terminate an employee who has been found to possess illegal drugs on business premises, the option to provide the employee with a firm choice or last chance agreement in lieu of termination (requiring that the employee seek rehabilitative services) may prove a more appropriate response.
Trends: Case and criminal law continues to evolve in states with marijuana protections. Although most laws do not protect employees who are under the influence of marijuana while on-duty, employers continue to grapple with the optimal method to address marijuana use, whether on- or off-duty.
Author: Marta Moakley, JD, Legal Editor
Updated to include forthcoming amendments to the Arkansas Medical Marijuana Amendment of 2016.
Updated to reflect retaliation protections in forthcoming amendments to the Division of Occupational and Professional Licensing Act.
Updated to reflect discipline concerns regarding a state law that addresses weapons in the workplace, effective March 21, 2017.
Updated to reflect retaliation protections under the San Jose Opportunity to Work Ordinance, effective March 13, 2017.
Updated to reflect the retaliation protections in the St. Louis minimum wage ordinance, effective February 28, 2017.
A resource that guides employers on how to discipline misconduct related to marijuana use has been added. Contradictory laws across federal and state jurisdictions have complicated these types of employment decisions.
This resource guides employers on how to discipline misconduct related to marijuana use to address compliance concerns in jurisdictions that allow medical or recreational marijuana use.
Updated to incorporate the medical marijuana law, effective January 3, 2017.
Updated to reflect retaliation protections under the forthcoming state paid sick leave law.
HR guidance on the legal risks of substance abuse.