Recent Developments in Medical Marijuana Use in the Workplace – Part II

By David F.E. Banks
This is the second article in a three-part series reviewing recent legal developments in Hawai`i and across the country in the use of medical marijuana in the workplace. The first article reviewed the history of medical marijuana in Hawai`i and the applicability of federal and state disability discrimination laws to employees who are medical marijuana patients. In this article, we explore the implications of medical marijuana laws on drug testing in the workplace.

Drug-free workplace requirements

Despite the Hawai`i Legislature’s recent passage of a medical marijuana dispensary law, medical marijuana is still considered illegal in Hawai`i under federal law. The federal Controlled Substances Act (CSA) lists marijuana as a “Schedule 1” drug—regardless of whether its use is medicinal or recreational—which is the same designation as heroin.

Moreover, the federal Drug-Free Workplace Act of 1988 requires that employers with certain government contracts or federal grants maintain drug-free workplaces. Covered employers must provide employees a policy statement describing their drug-free workplace program, outlining prohibited substances, and detailing the consequences for using those substances.

Federal regulations also prohibit marijuana use and require several classes of employees to undergo regular testing for marijuana. For example, the U.S. Department of Transportation (DOT) has issued guidance on its drug- and alcohol-testing regulations that states, “It remains unacceptable for any safety-sensitive employee subject to drug testing under the [DOT’s] regulations to use marijuana.” Safety-sensitive transportation workers include pilots, school bus drivers, truck drivers, train engineers, aircraft maintenance personnel, transit security personnel, ship captains, and pipeline emergency response personnel, among others.

Can you still test employees for drug use?

First, you should be able to terminate an employee if permitting his medical marijuana use results in federal penalties for your company or a loss of funding or licensing. If that’s the case, consider revising your employee handbook and drug policy to include clear warning language on how the issue affects your workplace.

Second, you need not eliminate or ignore drug tests. It’s still unlawful to use marijuana recreationally in Hawai`i, and employees are prohibited from using, possessing, or being under the influence of medical marijuana at work. You may still administer drug tests in compliance with Hawai`i’s Substance Abuse Testing Law (Chapter 329B, Hawai`i Revised Statutes). State law authorizes employer drug testing if the job applicant or employee receives advance written notice of the substances he will be tested for and has an opportunity to disclose his current use of prescription and nonprescription medications. Also, under state law, there are specific cutoff levels for alcohol, marijuana, and opiates. A result falling below the cutoff levels is marked negative regardless of the possible presence of banned substances. The rules don’t change for Hawai`i employers doing business in an industry that must test employees for marijuana to comply with federal law (e.g., trucking companies) or employers that do business with the federal government that must maintain and enforce drug free workplace policies prohibiting employees from using, possessing, manufacturing, and distributing marijuana in the workplace (e.g., federal contractors).

Those employers can still test employees for drugs and take appropriate action under applicable policies if marijuana is detected in a drug test. If you don’t have to comply with any federal obligations, however, the situation may be different. You may be precluded from taking disciplinary measures or other adverse action against a registered cardholder who fails a drug test on the basis of his marijuana use because federal law doesn’t necessarily prohibit and criminalize failed drug tests. Thus, there would be no conflict with federal law in this situation, and state law would control. The enactment of the medical marijuana law probably means that without evidence of impairment on the job, a Hawai`i employer may not terminate or otherwise punish an employee who merely tests positive for marijuana if he shows proof of his registration as a medical marijuana user and there was no evidence that he was impaired on the job. Finally, beware of drug policies that tend to screen out disabled employees. Both the Americans with Disabilities Act (ADA) and Hawai`i law deem it discriminatory to use certain “qualification standards, employment tests or other selection criteria” that screen out disabled individuals. Policies that deny employment to someone who tests positive for certain prescription drugs (which now include medical marijuana) impermissibly tend to screen out disabled people in need of such drugs. You may still administer the test, but you must respond to positive results on a case-by-case basis and permit an employee or applicant to provide proof of her registration as a medical marijuana patient.

Bottom line

The medical marijuana laws could create more painfor many Hawai`i employers and HR professionals thanthey are intended to alleviate, particularly in the area ofdrug testing. As a result, you should proactively reviewyour relevant policies and practices—on drug testing,a drug-free workplace, discipline, discharge, hiring, accommodations,and smoking, for example, in light of applicablefederal and state laws.You should also make your managers and supervisorsaware of the issues that could arise if employees areregistered cardholders or use medical marijuana. Spottingand dealing with such issues early could help youavoid costly litigation and liability later on.

David F.E. Banks is a partner with Cades Schutte LLP. He is currently chair of both the Corporate Department and the Employment Law and Labor Relations Group. His employment law practice focuses on preventative counseling, strategic planning, legal compliance, labor and employment issues in M&A transactions, reductions in force, and assisting clients with drafting employment-related agreements, manuals, policies and procedures.