Attorney’s Guide to Cannabis and the Workplace

How does federal law impact workplace drug policies?

In addition to varying state laws, the fact that cannabis remains illegal under federal law makes compliance even more complex for employers. Even in states where recreational cannabis use is legal, under federal law cannabis users are not qualified to operate commercial vehicles.

Drug-Free Workplace Act

The Drug-Free Workplace Act of 1988 requires certain federal contractors and all federal grantees to provide a drug-free workplace as a precondition of receiving a contract or grant from a federal agency. Some employers may choose to follow the requirements even if they’re not covered by the law.

The Drug-Free Workplace Act considers cannabis to be a “controlled substance,” alongside other drugs such as heroin and methadone, and as such, subject to the rules under the Act. Notably, the Drug-Free Workplace Act doesn’t require testing.

[Download our compliance checklist to determine if the Drug-Free Workplace Act is applicable to you, and if so, your obligations under the law.]

The disjointed federal and state cannabis laws that businesses and labor and employment attorneys confront were on full display in the disposed 2022 U.S. Supreme Court case Musta v. Mendota Heights Dental Center. Susan Musta, an employee at a dentist’s office, was injured at work and was eventually certified to participate in Minnesota’s medical marijuana program. But when Musta sought reimbursement from her employer for the treatment pursuant to Minnesota’s Workers’ Compensation Act, the dentist’s office denied the request, arguing that the federal ban on possession of marijuana trumped the requirements of the state act.

A federal court agreed with Musta’s employer, and Musta asked the high court to take up her case. But the Justice Department filed a brief in Musta’s case – along with a separate case concerning the same issue – urging the court not to take it on the ground that the law in this area is “inconsistent” and “evolving.” The court subsequently denied the petition for review, but it may eventually be forced to grapple with this evident conflict between state and federal requirements.

How should employers approach cannabis-related impairment in the workplace?

None of the cannabis laws passed to date require an employer to allow intoxication on the job. Even so, it can be challenging for employers to know how to craft and enforce an effective workplace cannabis policy while still complying with employee protections against discrimination and unfair treatment.

Address cannabis directly as part of a larger drug policy

Employers should be cautious about relying on “illegal substances” policies that don’t specifically address cannabis, especially those that require “zero tolerance.” Particularly in states that have legalized cannabis, there’s likely to be confusion over whether the policy uses state or federal legality standards, or the extent to which the policy is intended to address cannabis at all.

Likewise, employers may want to distinguish between recreational and medical use, or the various forms of cannabis and its derivatives – especially if their policy is based on cannabis being legal at the federal or state level. Otherwise, employers could, for instance, run the risk of inconsistent application of a drug-free workplace policy if they take action against an employee who brings a joint to work, but not, for example, an employee who keeps a jar of hand lotion infused with marijuana-based CBD at his or her desk.

Don’t rely on drug testing

While many employers insist on a drug-free workplace – meaning employees are forbidden from working while intoxicated or under the influence of intoxicating substances and may not use or possess such substances while at work – a major problem in enforcing drug-free workplace rules is the fact that the available drug testing methods for cannabis can’t identify intoxication or impairment at the time of the test in the way that a breathalyzer can show with some degree of certainty that a person is drunk. Given that cannabis can linger in the system even after 30 days of nonuse, drug testing is not a reliable indicator of active impairment from cannabis.

As various states create their own rules around reliance on drug testing, employers may open themselves up to employment discrimination or wrongful termination claims based on drug tests that don’t provide actionable information about cannabis use. If an employee is disciplined or terminated due to workplace intoxication, it should be based on documented evidence created through the observational process, rather than based on tests that don’t indicate present intoxication. That evidence can then serve as a powerful shield should the employee turn around and sue for wrongful termination.

Monitor for signs of impairment

Rather than testing for general use, employers can establish a monitoring system to detect impairment in the workplace. Managers should be trained to recognize signs of impairment and to become acquainted with each employee’s typical demeanor and physical presentation, which can then serve as a baseline for articulating symptoms of impairment. In this regard, workplace policies that govern testing for alcohol impairment in the workplace could offer guidance, said Dori Goldstein, Bloomberg Law Analysis Team Lead.

Guidance for this kind of training can also be found in the newer state laws enacted around the country. For example, in Illinois, without resorting to a drug test, an employer may support a good faith belief that an employee is under the influence of cannabis through the identification of specific symptoms that may indicate impairment, such as:

• Changes to speech, physical dexterity, agility, coordination, or demeanor
• Irrational or unusual behavior
• Negligence or carelessness in operating equipment or machinery
• Disregard for the safety of the employee or others
• Involvement in any accident that results in serious damage to equipment or property
• Disruption of a production or manufacturing process
• Carelessness that results in any injury to the employee or others

Additionally, New Jersey’s guidance for employers seeking to monitor workplace cannabis intoxication states that a laboratory drug test alone is insufficient to be the basis for employee discipline or termination. However, a drug test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action.

Focus on workplace safety

Speaking at Bloomberg Law’s Leadership Forum in 2022, Assistant Secretary of Labor for Occupational Safety and Health Douglas L. Parker said a workplace drug testing policy should focus on work-related hazards.

Effective drug use and testing policies should consider the employer’s legitimate interests in maintaining a safe and lawful workplace, as well as the realities of modern society where cannabis use in various forms is increasingly accepted and commonplace. Employers who may consider allowing CBD use at work should also consider whether such use is consistent with job requirements and safety. Although CBD won’t cause a high like THC will, it may have other side effects, such as drowsiness. These effects may be unacceptable for certain job positions, such as those involving the operation of heavy machinery or motor vehicles.

“My hope is that, as things progress, there’ll be a technological fix that will allow us to determine if a worker is under the influence, the way that we’re able to do that with alcohol,” Parker said. “That technology doesn’t really exist with respect to cannabis at this time.”

He added that during accident investigations, it is “critically important” to continue to investigate more deeply, even after a positive drug test of an involved worker.

“That’s not the time to declare mission accomplished,” Parker advised. “There should be a full investigation determining the causal factors.”