Five Things Employers Should Know About Marijuana

By Brian C. Hey - McMahon Berger, P.C.

December 1, 2017

In light of the growing number of states that have enacted legislation addressing the use of medical marijuana (see chart below), employers should be aware of the following facts as they deal with this important issue.

• NOTHING interferes with an employer’s right to prohibit the use, possession or distribution of marijuana in the workplace.

• The Drug Free Workplace Act requires that companies that receive federal funds maintain a workplace absent illegal drugs, which includes marijuana. Failure to comply with the Drug Free Workplace Act can lead to a loss of federal funding.

• Drug testing currently is problematic because there is not a way to pinpoint the level of an employee’s impairment at a particular time. If an employee appears to be under the influence of marijuana at the workplace, have the employee drug tested pursuant to the Company’s policy and obtain written, signed statements from other employees who witnessed the impairment.

• In Missouri, employers must have an established and conspicuous RULE or POLICY against drug use in order to take advantage of the employer benefits set forth in Missouri’s Workers’ Compensation statutes. These benefits include a possible reduction in compensation or forfeiture of their injury claim.

• In July 2017, the Massachusetts’s Supreme Judicial Court ruled that an employee who had been terminated for testing positive for marijuana that was legally prescribed under Massachusetts’s medical marijuana law could SUE her former employer under the Americans with Disabilities Act. If your company is located in a state that legalizes marijuana, make an individualized assessment as to whether the employee should be disciplined for violating your company’s drug policy.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.