As the state-based legality of cannabis products evolves, employers have the difficult task of implementing workplace policies which meet their business goals while avoiding employee practice liability issues. While the federal government continues to schedule cannabis products as illegal, states’ regulation of these products is not standardized. This situation adds complexity for employers when it comes to workplace policies, drug testing, discrimination and other employment issues.
The state(s) you do business in can greatly guide your workplace policies on cannabis products. States often have relatively clear guidance built into statutory law regarding workplace policy. In those cases, the text of laws will include mentions of the “workplace” and/or “employer” which can provide you guidance.
When state statutes are silent about what actions an employer can take in regards to cannabis, the status quo of federal law remains in place. Therefore, state law would not impact employers’ rights to prohibit employees from using or being under the influence of marijuana at work or during work hours or from requiring employees or job applicants from undergoing drug testing.
Applying these legal nuances to workplace policies can be the hardest part for employers. Here are examples of how common policies are being addressed in the current environment:
- Zero-tolerance policies: Employers are generally allowed to adopt reasonable zero-tolerance or drug-free workplace policies and employment policies concerning drug testing, smoking, consumption, storage and use of marijuana in the workplace or while on call, as long as they are applied in a non-discriminatory manner.
- Safety-sensitive roles: States marijuana laws like those at play in Illinois often specify that an employer may exclude an authorized medical marijuana user from safety-sensitive positions if it has a good faith belief that the individual is currently impaired.
- Off-duty use: States such as Michigan protect an employee’s right to use medical marijuana off-duty and prohibit employers from disciplining or taking adverse employment actions against an employee based solely on a positive marijuana test alone if the employee is a certified medical marijuana patient.
- Disability law: Employers in states such as Minnesota or Illinois with legalized marijuana may face state-level liability for adverse actions taken against authorized, off-duty marijuana users. Employers may need to consider either accommodating a disabled employee’s state-authorized, off-duty marijuana use or engage in an interactive process with the employee to determine whether reasonable accommodations may be necessary.
Where Wisconsin stands
Wisconsin is still a “zero tolerance” state, though it permits prescribed use of CBD. An employer can, consistent with the law, have policies which prohibit employees from being under the influence of drugs and alcohol at work. Wisconsin’s Worker’s Compensation Act (Wis. Stat. 102.58) also gives an employer defenses to indemnity benefit payments if a work-related injury is deemed to have been a result of a violation of an employer’s policy concerning drug or alcohol use.
Wisconsin law requires private employers working on public works construction projects to have a written program to prevent substance abuse by employees, and also requires transportation employees in Wisconsin, such as drivers of commercial motor vehicles, to comply with Wisconsin DOT Motor Carrier Safety Regulations regarding workplace drug testing.
Employers should become familiar with their state’s marijuana laws to determine whether they address employers’ rights and obligations relating to workplace drug policies and off-duty marijuana use. Employers are best served by taking this opportunity to partner with legal counsel to review and update existing workplace policies concerning drug testing, documentation, and enforcement processes. It’s imperative for employers to ensure that workplace policies and procedures are clearly written and enforced on a consistent basis to avoid exposure risks.