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
A federal district court in the state of Washington has ruled that employers do not have to accommodate the use of medical marijuana if they have a drug-free workplace, even if the marijuana is being used off-site to treat an employee's disability. The ruling is notable because Washington has legalized marijuana not only for medicinal use but for recreational use as well.
South Carolina amended its unemployment benefits law regarding the ineligibility of employees terminated for illegal drug use.
Georgia has become the 24th state to legalize medical marijuana in small amounts. On April 16, Governor Nathan Deal signed legislation that immediately permits the use of the drug to treat eight serious health conditions. However, the new law does not protect medical marijuana users from employment discrimination.
The Michigan Court of Appeals has ruled that individuals who are state-approved medical marijuana users under the Michigan Medical Marihuana Act (MMMA) should remain eligible to receive unemployment benefits under the Michigan Employment Security Act. The appeals court based its decision in Braska v. Challenge Manufacturing Co. on the fact that the provision of unemployment benefits constitutes state action.
With voters in Alaska, Oregon and the District of Columbia having approved laws to legalize recreational marijuana use for adults 21 and older, several XpertHR sections have been updated.
Voters in Oregon, Alaska and the District of Columbia affirmed ballot measures earlier this month to legalize recreational marijuana use in small amounts. However, none of these laws will prevent employers from maintaining a drug-free workplace policy.
The legal risks associated with workplace holiday parties, preferable party alternatives, minimizing employer liability, how to handle party-related sexual harassment and other claims, as well as drugs and alcohol in the workplace.
Voters in Oregon, Alaska and Washington, DC will vote tomorrow on whether to legalize recreational marijuana use. Meanwhile, Florida voters will decide whether to legalize medical marijuana use. However, none of the measures would prevent employers from maintaining a drug-free workplace policy.
Employers seeking to adopt a policy prohibiting the use, sale, possession, etc. of drugs and/or alcohol should consider including this model policy statement in their handbook.
HR guidance on developing a drug-free workplace policy and program that complies with state and federal law.