Written by: Lorrie Coffey, Horizon Point Consulting

Ten states plus DC have legalized marijuana for recreational use. Thirty-four states have legalized it for medical use. And CBD oil is readily available in most states. 

But marijuana is still classified by the Drug Enforcement Agency as a Schedule 1 drug, which means it is still illegal to grow, buy or sell, possess, or use under federal law. 

Oh, and while CBD shops popped up on every street corner as soon as the Farm Bill was signed back in late 2018, the Farm Bill did not legalize the general production, sale, or use of CBD oil. It only legalized it under certain circumstances outlined in detail in the Farm Bill. It is still classified as a Schedule 1 substance and thus is in general illegal under federal law. (The possession or use of CBD oil is reportable against federal security clearances.) 

According to a 2017 study conducted by Statistical Brain, 56% of U.S. employers surveyed conducted pre-employment drug screens. 

What does all of this mean for those employers that drug test? How can marijuana be both legal and illegal at the same time? Should employers continue to maintain a drug-free workplace policy? And what’s the legal liability if they do? 

Unfortunately, the answer isn’t necessarily clear cut. While many states have legalized marijuana use in some form or another, very few states have offered any guidance to employers on how those laws impact drug-free workplace policies. So how do employers navigate through what I’ve come to refer to as the cannabis conundrum? 

1. Do your research. Understand the laws in your state regarding marijuana use. Don’t believe everything you hear. For example, medicinal marijuana is NOT generally legal in Alabama. Yet. A bill was signed in June by Gov. Ivey to create a commission to study legalizing medical marijuana. Their findings are due in December. Look up case law to see if your state has set any precedents through court decisions regarding employers and employees. Find out if there is a state-supported drug-free workplace program (available here). 
2. Get in line with your state. If your state does have a drug-free workplace program, make sure that your program is in line with state guidelines. Most states that have a program provide very detailed information on how to get your organization’s program approved or certified. Most states that do have a program offer a discount (usually 5%) on your Worker’s Compensation insurance if you are a certified drug-free workplace employer. And once you get certified, make sure you stick to the program. If you do, you’ll ensure that you are within the state law with regards to drug testing and how you handle positive tests. 
3. Multi-state employers beware. If you have locations in multiple states, be sure to research each state. What’s acceptable in one may not be in another. You’ll also need to take into consideration if the employee works and lives in two separate states, if they travel extensively for work, or if they telecommute. 
4. Evaluate why your organization drug tests. Here’s my unpopular opinion. If an employee enjoys marijuana on their own time in most cases it isn’t impacting the organization. Now, if an employee enjoys marijuana on their own time on their way to work and shows up to work under the influence, that can impact the organization. It may impact productivity, brand image, and most importantly could pose a safety risk to the employee or others. Understand why your organization drug tests when they test and ask yourself if the reasons are bona fide. If the answer is no, it may be time to rethink your policy. 

While many states have legalized marijuana, they have not restricted the rights of employers to maintain drug-free work environments. However, that doesn’t mean that you as an employer don’t still need to be cautious before acting. And don’t be afraid to seek outside assistance if you’re still not sure how to maintain your drug-free policy or how to handle an employee situation. That’s what the experts are there for.