On December 4th, 2020, the House of Representatives approved the MORE Act (Marijuana Opportunity and Expungement Act), a bill that would end the federal prohibition of marijuana in the United States. In the first significant Congressional action relating to marijuana since the original passage of marijuana prohibition back in 1937, lawmakers passed the historic Bill by a vote of 228-164.
So, does this mean marijuana is now legal? No, marijuana has not been decriminalized at a national level…yet. The Bill still needs to be approved by the Senate and the President, where it is largely expected not to survive those milestones.
If the Bill were to become law, the MORE Act would (amongst many other changes):
Marijuana is the most commonly detected drug in workplace drug testing, with the highest positivity rates of any other drug of abuse. The medical use of marijuana is now approved in 35 states; 15 of those states also permit the personal use of marijuana for anyone over 21 years old.
According to a study by the National Institute on Drug Abuse, Workers who tested positive for marijuana were involved in 55% more industrial incidents, 85% more injuries, and 75% greater absenteeism than employees who tested negative.
Employers have an obligation to maintain safe workplaces. Like alcohol, marijuana can impair judgment and performance. However, impairment levels for marijuana have not yet been scientifically defined. Thus, unlike alcohol, safe levels for marijuana have not been delineated, standardized, or established by statute or regulation. Similarly, functional marijuana sobriety or impairment tests and cutoff levels are not generally available. The challenge for employers is ‘growing’ more difficult.
Substance abuse policies for employers across the nation reference or largely depend on marijuana’s current classification as a Schedule I substance under the CSA. If, or more so when, marijuana is declassified, employers will be tasked with revising the language of their policies while working to strike a balance of safety. Federal drug testing programs, such as the Department of Transportation (DOT) drug and alcohol testing regulations, will likely remain unchanged as those positions are safety-sensitive.
However, it is unknown what additional changes will arise from the Americans with Disabilities Act (ADA), state disability discrimination laws, state human rights laws, and state medical marijuana laws due to the rescheduling of marijuana.
Employers are strongly encouraged to implement random drug screening programs, train managers and supervisors on how to recognize the signs and symptoms of drug use, how to act when workplace drug use is suspected, and to review their job descriptions for all job types, especially safety-sensitive job roles.
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