Legal or not, the use of marijuana can impair a person’s ability to function, says Tim Zimmerman, vice president of First Choice Drug Testing, and employers ought to implement zero-tolerance policies.
“Alcohol is a legal substance, yet we would not think about letting someone we suspect is under the influence of alcohol operate machinery, drive our company vehicles or balance our books,” said Mr. Zimmerman, who spoke at the Little Rock Executive Association meeting Tuesday morning. “Why would we not treat those who use marijuana the same?”
Arkansas voters’ recent approval of medical marijuana has cast a “huge burden” on employers, he said.
The Arkansas amendment prohibits employer discrimination against employees who legally benefit from the use of medical marijuana, but its “verbiage contradicts federal law,” Mr. Zimmerman said.
The Arkansas Medical Marijuana Act (Section 103) states:
“An employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based on the individual’s past or present status as a Qualifying Patient or Designated Caregiver.”
The United States Office of Personnel Management spells out the federal restrictions: The use of both recreational and medical marijuana is still illegal under federal law.
“Federal law on marijuana remains unchanged. Marijuana is categorized as a controlled substance under Schedule I of the Controlled Substance Act. Thus knowing or intentional marijuana possession is illegal, even if an individual has no intent to manufacture, distribute, or dispense marijuana. In addition, Executive Order 12564, Drug-Free Federal Workplace, mandates that (a) Federal employees are required to refrain from the use of illegal drugs; (b) the use of illegal drugs by Federal employees, whether on or off duty, is contrary to the efficiency of the service; and (c) persons who use illegal drugs are not suitable for Federal employment. The Executive Order emphasizes, however, that discipline is not required for employees who voluntarily seek counseling or rehabilitation and thereafter refrain from using illegal drugs.”
Because the federal and state laws are contradictory, it’s up to employers to create clear zero-tolerance policies that prohibit their employees from using marijuana, Mr. Zimmerman said. “Employees need to know exactly what the consequences are.”
Employers are required by the Occupational Safety and Health Administration (OSHA) to provide a safe work environment, and according to Mr. Zimmerman, legalized marijuana makes this a “daunting task” for employers.
Since there is no device available to determine whether a person is under the influence of marijuana at a specific time, Mr. Zimmerman said, there is no way to determine whether an employee tested positive because he consumed marijuana during the work day or when he was off the clock.
“Therefore drug testing and substance abuse education is your only real defense against keeping a safe work environment. … It’s 100 percent a safety issue, and you have the duty to provide a work environment free from substances that can impair a worker,” Mr. Zimmerman said. “Currently, the only way to protect the work environment is to make sure you have a robust testing policy with zero tolerance.”