MARIJUANA USE BY EMPLOYEES: DRUG-FREE POLICIES AND THE CHANGING LEGAL LANDSCAPE.

• Author: Cork, Kerry

Introduction 594 I. Background 594 II. Employment Drug Laws and Policies 596 A. Federal Level 596 1. Drug-Free Workplace Act 597 2. Occupational Health and Safety Act 599 3. Other Federal Agency Requirements 600 4. Other Relevant Federal Protections 601 B. State and Local Levels 601 1. State and Local Disability and 602 2. State Workers Compensation Laws 603 3. State Unemployment Insurance Laws 604 4. Other Significant State Laws 604 III. Workplace Marijuana Policies 605 A. Reasonable Accommodation 605 B. Drug Testing 606 1. Difficulties in Testing for THC 607 2. Job Applicant Drug Screening 608 3. Employee Drug Testing 610 IV. Impact of Employment Policies on Urban Populations 614 Conclusion 615 INTRODUCTION

As the number of U.S. states legalizing recreational and medical marijuana (1) continues to increase, local communities in these jurisdictions are struggling with many complex regulatory issues, including safe use in different environments, such as the workplace. (2) Because the marijuana industry is hyper-localized and urban communities are typically more populous and engage more of the workforce than suburban or rural communities, evolving laws and practices regarding marijuana and the workplace have a direct impact on urban employment. (3) This Essay explores how communities and businesses in different states have adapted their employment laws and policies in response to the shifting cultural acceptance of medical marijuana and--more recently--recreational marijuana use. The first part begins by describing general federal and state legislation that regulates drug use in the workforce, including laws that protect the rights of both employers and employees. The second part then examines several workplace marijuana policies adopted by states, localities, and employers, and representative judicial decisions, many of which reflect a growing tolerance toward marijuana use by both job applicants and employees.

1. BACKGROUND

   To date, 33 states, the District of Columbia, and four U.S. territories have legalized marijuana for medical use, and 11 states, D.C., and two U.S. territories have legalized it for adult recreational use. (4) At the time of this printing, marijuana remains classified as a Schedule 1 controlled substance under federal law, which means it has no currently accepted medical use in the United States and has a high potential for abuse. (5) Although scientific studies on the health risks of marijuana consumption are limited, research has shown that the combustion or vaporization of marijuana produces carcinogens, irritants, and toxins, including many of the fine inhalable particulates and chemicals found in tobacco smoke. (6) These chemicals can cause respiratory symptoms, such as coughing, phlegm, and wheezing, and can exacerbate health problems, especially for people with respiratory conditions, such as asthma, bronchitis, and chronic obstructive pulmonary disease. (7) Also, as discussed later and with particular import for the workforce, marijuana use can impair fine motor skills and critical thinking, particularly in the operation of motor vehicles and machinery. (8) Nevertheless, marijuana remains the most commonly used addictive drug in the United States after tobacco and alcohol. (9)

   All states--including those that legalize recreational marijuana--prohibit the smoking of marijuana in public areas, such as restaurants, bars, and non-hospitality workplaces. (10) Often, smoke-free laws contain provisions that define "tobacco product" to include e-cigarettes and similar devices and also define "smoking" to include the vaping of marijuana. (11) At the same time, the growing popularity of marijuana use has led at least six states and close to 60 localities to adopt exemptions from clean indoor air laws that permit the use of marijuana in indoor public settings such as licensed marijuana dispensaries, cannabis lounges, cafes, clubs, coffeehouses, "marijuana hospitality establishments," and other "social consumption" venues. (12) Some jurisdictions also allow organizations to obtain temporary licenses or permits for events such as festivals, cannabis cooking and painting classes, and cannabis tasting tours. (13) In addition to patrons, these establishments and venues all have employees, many of whom are likely to be exposed to marijuana smoke on the job.

   However, retail and hospitality establishments are not the only work settings where marijuana use has become an issue. The treatment of marijuana in the workplace has become an ongoing concern for employers across the United States.

2. EMPLOYMENT DRUG LAWS AND POLICIES

   As jurisdictions continue to loosen restrictions on where marijuana can be consumed, laws and workplace policies regarding marijuana use by employees and job applicants have evolved.

   1. Federal Level

   Because marijuana remains an illegal drug under federal law, federal job applicants, employees, and contractors have traditionally been prohibited from using marijuana on and off the job. (14) The federal workforce contains slightly more than 9 million workers--almost 6% of the total U.S. workforce of 156.92 million. (15) Federal employees include uniformed military service members, postal workers, legislative and judicial staff, and employees at agencies, such as the U.S. Department of Transportation and the U.S. Department of Labor. (16) The workforce also includes civilian employees that work in every state, providing services related to healthcare; education; housing; disaster management; securing the nation's borders; coastlines; and waterways; forecasting the weather; protecting and ensuring the nation's food supply; and maintaining national parks. (17)

1. Drug-Free Workplace Act

   Under the 1988 federal Drug-Free Workplace Act, employers are required to make "a good faith effort... to maintain a drug-free workplace" and to prohibit employees from using controlled substances in the work environment. (18) In 2015, the U.S. Office of Personnel Management (OPM) sent a memo to all federal agency heads reminding them that marijuana remained an illegal substance under federal law. (19) The memo cited the 1986 Executive Order for a Drug-free Federal Workplace (20) and stated that (1) all federal employees must refrain from the use of marijuana, whether on or off duty; (2) marijuana use is contrary to the efficiency of federal services; and (3) those who use marijuana--or any drugs currently illegal under federal law--are unsuitable for federal employment. (21)

   Over the following years, as social acceptance of marijuana has grown in the face of increased state legalization, some federal workplace drug policies have relaxed. For example, in February 2021, the OPM issued new guidance for federal agencies, stating that past use or possession of marijuana should not automatically disqualify federal job applicants and that federal agencies should find a nexus between the employee's possession or use of marijuana and its impact on the integrity or efficiency of the government. (22)

   The OPM stated that in determining the suitability or fitness of an applicant or employee who uses or used marijuana, the individual's conduct should be evaluated on a case-by-case basis by taking into account (1) the nature of the position for which the person is applying or in which the person is employed; (2) the nature and seriousness of the conduct; (3) the circumstances surrounding the conduct; (4) the recency of the conduct; (5) the person's age at the time of the conduct; (6) contributing societal conditions; and (7) the absence or presence of rehabilitation or efforts toward rehabilitation. (23) The OPM emphasized that employees struggling with substance abuse issues should seek counseling and rehabilitation, and that discipline is not required for employees who seek such services and refrain from using illegal drugs in the future. (24)

   In addition to federal employees and employers, many federal contractors and all federal grantees are required by law to establish and maintain a drug-free workplace policy. (25) Federal contract workers include clerical, custodial, and cafeteria staff for all government agencies and federal grant recipients include law enforcement, entities within state and local governments, educational institutions, (26) and research labs, as well as nonprofit organizations and small businesses. (27) Under the Drug-Free Workplace Law, the use, distribution, and possession of drugs are also prohibited on all federal contracting worksites. (28)

   Failure to make a "good faith effort" to comply with the requirements of the federal Drug-Free Workplace Act may result in various penalties, such as suspension or termination of contracts or grants and administrative fines. (29) Although some federal employers, contractors, and job positions require drug testing by regulation, the Drug-Free Workplace Act does not require drug testing. (30) Moreover, federal contractors are not prohibited from employing an individual who uses marijuana outside of the workplace unless specifically mandated.

   2. Occupational Health and Safety Act

      Another federal policy regulating employee use of marijuana is the 1970 Occupational Safety and Health Act (OSHA), which requires that employers provide a safe workplace in compliance with federal protective safety and health standards. (31) As part of OSHA's General Duty Clause, employers must keep their workplaces free of "recognized hazards that arc causing or are likely to cause death or serious physical harm" to their employees. (32) Because employers have a legal obligation to protect workers from direct threats to safety under OSHA, their tolerance of an employee that uses a federally illegal drug, even for medical purposes, may be seen as creating an impermissibly harmful environment under current federal law.

      In addition, employees who work in safety-sensitive positions and use marijuana on the job could pose a hazardous risk to themselves or others in the...