Question: Can we maintain a zero-tolerance marijuana use policy in our workplace if medical marijuana use is legal in the state?
Answer: Yes, you can. Employers have an absolute right to maintain a drug-free workplace and do not have to allow or tolerate drug use or intoxication in the workplace. Although some states permit the use of marijuana for both medicinal and recreational purposes, most state laws provide exemptions for employers to prohibit the use of marijuana in the workplace. If you maintain a drug-free workplace, then your employees may be subject to discipline and/or termination when working under the influence of marijuana (i.e., on-the-job intoxication). In states where marijuana use has been legalized for medical or recreational purposes, employers may elect to establish intoxication standards for marijuana metabolites, rather than imposing discipline for any presence of the drug. However, this standard must be applied consistently and regularly to all employees.
As of February 2016, marijuana continues to be an illegal drug under federal law (which trumps state laws), and employers are not required to permit on-the-job use of or marijuana intoxication by employees or applicants. You may discipline employees who are legally using marijuana under state law but who are in violation of your workplace policy, because under the law, employees are not protected from being fired for failing a drug test.
Alternatively, you may elect to accommodate your employee’s medical marijuana use, but the Americans with Disabilities Act (ADA) does not require you to reasonably accommodate current unlawful drug use. Employees who claim disability discrimination for their medical marijuana use may attempt to file under the ADA. However, the ADA excludes current illegal drug users from protection; therefore, employers are free to conduct drug tests on employees, subject to certain limitations, to detect the presence of illegal drug use.
Finally, refer to your state’s laws on employer rights and medical marijuana law. Additionally, you may want to update your policies to ensure you are clear about whether you will accommodate marijuana use in the workplace and the subsequent action should an employee be found using marijuana.