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
This podcast examines what the opioid crisis and increasing number of marijuana legalization laws have meant for employer drug testing programs, with insights from New Hampshire employment attorney Jim Reidy.
Vermont has become the ninth state to legalize recreational marijuana with Governor Phil Scott signing a law earlier this week.
Attorney General Jeff Sessions has rescinded an Obama-era policy that instructed federal prosecutors to take a hands-off approach in states where marijuana is legal. In a Justice Department memo, Sessions said the previous guidance undermined the rule of law.
The Maine House of Representatives has upheld Governor Paul LePage's veto of a bill to legalize recreational marijuana sales in the state.
In a first-of-its-kind ruling, a federal district court has held that the federal marijuana ban does not preempt a Connecticut law protecting job applicants and employees from being discriminated against based on their lawful medical marijuana use.
The Massachusetts Supreme Judicial Court has ruled that a fired employee who failed a drug test because she was taking medical marijuana to treat Crohn's disease can sue her former employer for handicap discrimination.
HR guidance on developing a drug-free workplace policy and program that complies with state and federal law.