Kathleen Connelly, an attorney with Lindabury, McCormick, Estabrook & Cooper P.C., said the difficulty from the employer standpoint is the tension between understanding that people see benefits from cannabis in medical treatment but also needing to ensure these individuals aren’t under the influence while performing job duties.
The law makes it clear that employees can’t be intoxicated during working hours, Connelly said, but there haven’t been the test cases in courts yet to be clear-eyed about what will pass for evidence of an employee’s on-premises cannabis use.
Otherwise, according to Connelly, employers only have flexibility to proceed with an adverse action toward employees or would-be employees when the medical marijuana use would somehow violate federal law or result in the loss of a federal contract.
“So, if you have someone like a tractor-trailer driver, with a license provided by the U.S. Department of Transportation, who ends up positive on a test, you can still take action,” she said. “Additionally, if you have federal contracts requiring a zero-tolerance, drug-free workplace, the statute recognizes that you can’t put employers in a situation where they can lose that contract.”
It’s also worth remembering that there’s a set of rules that restrict when an employer can have employees tested for drugs, Connelly added.
“At least in our state, you can’t just randomly test people or do it whenever you feel like it,” she said. “You’re only allowed to do it routinely for people who work in a safety-sensitive position or suddenly when you have reasonable suspicion of an employee being intoxicated.”