Editor's Note: Understand employer obligations to establish a drug-free workplace.
Overview: The federal Drug-Free Workplace Act of 1988 requires that employers with certain government contracts or receiving federal grants provide and maintain a drug-free workplace.
As part of this, employees must be provided with a policy statement describing the drug-free workplace program, outlining prohibited substances and detailing the consequences for using such substances.
There may be different requirements depending on if the contractor or grantee is an individual or an organization. Similarly many states and municipalities also have Drug-Free Workplace Acts in place.
It is best practice for employers to develop a drug-free workplace policy and publish the policy in the employee handbook. Employees should be required to acknowledge that they consent to and understand the policy.
Further, employers should make sure that their drug-free workplace policy and program complies with applicable state and federal laws.
Lastly, the policy should be applied in a uniform manner and should not discriminate against employees.
Trends: Employers should be aware that the issue of legalization of marijuana for medical purposes in a handful of states has caused employers in these states some difficulty in maintaining a drug-free workplace.
Employers are dealing with the issue of how to balance an individual's right to use marijuana for medical reasons with how to enforce a drug-free workplace policy and program.
It is also impacting an employer's right to drug test both employees and applicants as well as whether it is permissible for employers to engage in preemplyoment inquiries regarding drug use and whether employers must accommodate medical marijuana that employees use after working hours and outside of the workplace.
Further, employers should be aware that the US Department of Transportation recently issued new guidelines prohibiting the use of medical marijuana for transportation workers in positions where safety is a primary concern.
Author: Beth P. Zoller, JD, Legal Editor
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XpertHR's Maryland content has been updated in the Employee Privacy, Employee Handbooks - Work Rules - Employee Conduct, and Preemployment Screening and Testing sections to include a new law permitting the use of medical marijuana in the state, effective October 1.
A new Maryland law effective on October 1 that permits the use of marijuana for medical purposes may have an impact on workplace policies regarding employee drug use and testing.
The Colorado Court of Appeals has ruled that even though medical marijuana use is legal in the state, employers may still terminate employees who fail a drug test due to off-duty use of medicinal marijuana. See Coats v. Dish Network, LLC, 2013 COA 62 (2013).
Conflicting messages about state and federal marijuana laws have left employers wondering whether they may regulate medical marijuana use during working and non-working hours as well as the ability of employers to drug test employees and applicants. Employers need to be aware of the state of the law on the federal and state level as well as proposed legislation and how this can impact their workplace policies and procedures as well as how to implement a drug-free workplace policy and discipline employees for marijuana use.
XpertHR now includes a Legal Insight, Hazy Future: Reconciling Federal and State Laws on Marijuana Use which addresses recent federal and state legal developments regarding the legalization of marijuana use for medical and/or recreational purposes as well as proposed legislation and its impact on the workplace.
A district court in Pennsylvania held that an employer may require probationary employees in safety sensitive positions to undergo random alcohol testing without violating the Americans with Disabilities Act (ADA) if it can show that there is a clear business justification and medical necessity. In doing so, the court dismissed a claim filed by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee who was terminated when she obtained a false positive test result due to her diabetes medication. See Equal Employment Opportunity Commission v. United Steel, 2013 U.S. Dist. Lexis 22748 (W.D. Pa. 2013).
The Montana Supreme Court has upheld a law that greatly restricts access to medical marijuana even though such usage is legal in the state.
As mandated by the West Virginia Division of Personnel, state government agencies must post the West Virginia Drug- and Alcohol-Free Workplace Policy poster.
HR guidance on developing a drug-free workplace policy and program that complies with state and federal law.