In November 2019, the House Judiciary Committee made history when it advanced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, becoming the first congressional body to vote favorably for a marijuana descheduling bill. The House has postponed the vote, however, it is important to understand how this Act could impact hiring and workplace regulations.
Currently, 33 states and the District of Columbia regulate the production, sale, and use of marijuana and marijuana-infused products for medical purposes. Eleven of these states also permit marijuana possession by adults, and 10 of them also regulate adult-use sales. However, all of these state-level legalization policies are incongruous with federal law, which classifies the cannabis plant as a Schedule I criminal substance, meaning that the government believes it has a high potential for abuse and no medical value.
The MORE Act would federally decriminalize cannabis by removing it from the Controlled Substances Act, and would require the expungement of past federal cannabis convictions. Since the Controlled Substances Act was passed in 1970, drugs in the U.S. are classified by “schedules” based on their potential for abuse, how much we know about their effects, and any medical value they have, according to the Drug Enforcement Agency.
The MORE Act would establish a Cannabis Justice Office to administer a program to reinvest resources in the communities that have been most heavily impacted by prohibition, funded by a 5% tax on state-legal cannabis commerce. It would also allow the Small Business Administration to provide loans and grants to cannabis-related businesses and support state and local equity licensing programs, and would permit doctors within the Veterans Affairs system to recommend medical cannabis to patients in accordance with applicable state laws.
Current policy and pending legislation create challenges for any employer that conducts drug testing as part of its new-hire process or a periodic condition of employment. While it’s important to ensure that employees are not intoxicated at work, decriminalization of marijuana on a federal level puts it on par with alcohol use – which is typically not part of pre-employment screening as it is only possible to test for current sobriety. This complicates the issue for workplace safety guidelines, as drug testing following a workplace accident would result in a failed test for employees who are not using marijuana in the window of the accident occurrence.
However, marijuana may increase the risk of on-the-job injuries. According to a study in the Journal of Occupational and Environmental Medicine, there may be a statistical correlation with marijuana use and an increased likelihood of workplace accidents. This risk is amplified for workers whose jobs involve driving vehicles – especially public transit drivers – as several studies have correlated marijuana intoxication with impaired driving ability.
It raises several questions for employers: Do we relax drug testing policies to allow for consumption outside of working hours? Do we stop screening candidates for marijuana? Do we have separate rules for OSHA regulated positions? For employers who currently have zero-tolerance policies for drug use, including marijuana, it could create a violation of employee rights for employees using medical or recreational marijuana legally – just as employees may freely consume alcohol when not at work.
Because some states have legalized recreational and medicinal use of marijuana, we have already seen court cases and legislation related to employment screening. In Roe v Teletech (2011), the Washington Supreme Court upheld a ruling that an employer does not have to accommodate an employee’s use of medical marijuana, even when the employee is in a non-safety-sensitive position and uses medical marijuana exclusively off-site. In contrast, Nevada recognized the quandary of allowing medical marijuana while simultaneously permitting employers to discriminate against its use. Thus, Assembly Bill 132 was passed, making Nevada the first state to prohibit employers from discriminating against applicants for a positive marijuana test (with some job role exemptions).
In order to remain compliant with employee rights, employers must understand federal and state legislation where they operate, as well as the legal risk of denying employment due to a positive drug screen for marijuana. Working with a third-party vendor ensures that your company’s employment screening and drug screens (whether random or due to a workplace accident) are conducted within the guidelines of the most up-to-date version of federal and state laws.
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