The cannabis conundrum: What are workers’ rights?

Medical Marijuana Facility in Colorado

The legalization of cannabis across the country presents uncharted territory for many companies. HR departments are tasked with meeting the challenges associated with new laws related to random drug and pre-employment testing, as well as a host of cultural issues. Organizations are also collaborating with EAP providers on what seems to be a moving target. Meanwhile, EAPs themselves struggle to balance the healing potential of medicinal cannabis with its addictive properties and unclear side effects.

Cannabis is illegal on the federal level and yet legal in a growing number of states, leaving HR professionals in a difficult position. More than 34 states have now legalized cannabis for medical use and 10 for recreational use. Here are some HR and legal issues to be considered.

See also: Cash-rich marijuana business brings unexpected tests for benefits, HR

Job protection for medical use of cannabis
Some states offer job protection for employees with medical cards. For example, in New York, medical card holders are covered under the state disability laws. In Massachusetts, the state Supreme Court ruled that a card-carrying worker could bring suit against her employer if terminated for failing a random drug test. In some states such as Ohio, Colorado and California, there is no job protection for medical users, nor is there protection for transporting cannabis during air travel.

Medical use and job safety
In situations where cannabis is used to aid a disability, reasonable accommodations must be made, but not at the expense of safety. In every situation, health and safety take priority. If employees appear too impaired to perform their jobs safely, their behavior needs to be carefully documented in order to remove them from their duties.

See also: Marijuana is now legal in my state, but is it a ‘lawful product?’

Cannabis and workers comp
To make matters even more confusing, there is a hot debate about cannabis as it relates to workers compensation. Can a workers compensation claim be denied if an employee was using medical marijuana when injured? Can a company be required to pay for medical marijuana as a treatment after a workplace injury?

Cannabis and drug testing
In June, Nevada was the first state to ban pre-employment marijuana
testing for employees not in public safety positions. Other states may follow.
There are many legislative efforts to end the confusion by legalizing marijuana on the federal level for both medical and recreational use, thus overriding state laws. Until this happens, organizations must continue to make their own decisions about whether to include cannabis in the drug panels for all employees or only when drug testing is mandated under federal law.

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