Drug testing and workplace investigations will be impacted by state ballot initiatives and NRLB decisions.

By M. Robin Repass

During the 2012 general election, voters in Colorado and Washington State passed ballot Settingsinitiatives to legalize marijuana possession. A total of 18 states currently allow the “medical” use of marijuana in some form (according to information posted at http://norml.org/states as of Dec. 13, 2012). Meanwhile, the National Labor Relations Board (NLRB) issued a flurry of decisions in 2012 on various issues of interest to personnel in safety and human resources (HR) positions. This article addresses issues of particular interest to a safety sensitive workplace regarding marijuana laws and the status of workplace investigations.

Marijuana ballot initiatives

Many employers are asking whether the legalization of marijuana use in their state prohibits them from firing employees who test positive for marijuana. The short answer is that marijuana remains an illegal substance at the federal level. Provided that your policy also prohibits substances which are illegal under federal law, employers may continue to restrict the use of marijuana in the workplace through workplace policies and drug testing programs.

Colorado’s Amendment 64 regarding marijuana possession also reads that employers are not required to accommodate marijuana in the workplace. Although the state of Washington’s marijuana ballot initiative is silent regarding workplace issues, a decision construing Washington’s medical marijuana laws lends support to employers who restrict marijuana use through drug testing programs.

Federal reaction

U.S. Attorney John Walsh recently issued a statement that the U.S. Department of Justice will continue to enforce the Controlled Substances Act, which includes marijuana on the Schedule I controlled substance list. Substances on the Schedule I list are illegal under federal law.

The U.S. Department of Transportation (US DOT) also clarified its position. For covered employees (pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel), the US DOT will continue to fully enforce its drug and alcohol testing regulation, which does not authorize the use of Schedule I drugs for any reason.

Review and update drug policies

Employers in states where marijuana has been legalized or decriminalized are advised to review and update employee policies to clarify that the use of marijuana in the workplace will not be tolerated. This is especially true in a safety-sensitive workplace. An employee who is impaired through the use of marijuana creates a safety risk to fellow employees.

Best practice pointers include, but are not limited to, the following:

• If your company has a zero-tolerance drug testing policy, state this clearly in the policy. Enforce the zero-tolerance policy consistently.