By Douglas H. Deurr

As of January 2017, 28 states and the District of Columbia have laws allowing medicinal use of marijuana, 16 states have laws permitting use of Cannabidiol extract, and seven states and the District of Columbia allow recreational use of marijuana. At least half of these new laws have been enacted since 2000, which is a rapid pace of social change.

Notwithstanding this sea of change, federal law still lists marijuana as a Schedule I drug, i.e. a drug with no medicinal value that is addictive; however, in a policy that is widely expected to be rescinded by the new administration, the federal government has indicated that it would not pursue federal drug cases against purveyors and users of marijuana in states where it is legal under state law.

As a consequence of these actions by state and federal governments, not only is marijuana use increasing dramatically, many employees believe that because they have a “prescription” or the law allows them to use marijuana that their employer’s drug-free workplace policy does not apply to marijuana use. For now, at least, that belief is wrong.

Because marijuana is still illegal under federal law, even if an employee has a “prescription” for marijuana (in actuality, it is a “recommendation” as a doctor risks losing his/her federal license), there is no requirement under the Americans with Disabilities Act (ADA) that an employer accommodate illegal drug use. This is so even if the employee has a disability within the meaning of the ADA.

In addition, even if a state law prohibits discharge or other adverse employment action for engaging in a legal activity, the courts that have addressed such laws have upheld terminations because federal law criminalizes marijuana use. However, some states have started enacting employee protections, such as Arizona, Delaware and Minnesota, which have laws indicating that a positive drug test alone is not evidence of impairment.

In light of these changes, some employers might wonder whether it might be a good idea, particularly with a tightening labor pool nationally, to loosen their drug-free workplace policies to allow for marijuana use. While the motivation to do so is certainly understandable in light of the now-common perception that marijuana usage is not harmful, multiple studies suggest caution if you are worried about workplace safety. Marijuana is already the most commonly used drug by employees, with cocaine and prescription drug usage (primarily opioids) not too far behind. While there are very few studies focusing just on marijuana usage in the workplace, the National Institute on Drug Abuse notes that the short-term effects of marijuana include impaired body movement, difficulty with thinking and problem-solving, memory problems and an altered sense of time. Numerous other studies have demonstrated a statistical connection between illicit drug use, including marijuana, and an increase in accidents, with some studies showing that drug users are 3.6 times more likely to have a workplace accident.

Given these safety statistics and the evidence of rising drug use, some employers may decide to tighten up their testing programs and become more serious about post-accident testing as a deterrent to illegal drug use. Not so fast! The federal Occupational Safety and Health Administration (OSHA) has a different idea and has come out with a position that may seem contrary to common sense. Although OSHA’s new rules, which were issued last year and went into effect Dec. 1, 2016, after a delay, do not specifically prohibit post-accident drug testing, OSHA’s comments on the rules reflected OSHA’s hostility to blanket post-accident testing. Instead, OSHA believes that such testing deters the reporting of accidents, which the new rule is intended to prohibit. According to OSHA:

“Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”

OSHA then goes on to state that post-accident testing is appropriate to comply with state or federal law or if it is limited just to those situations in which employee drug use is likely to have contributed to the incident and for which the test can accurately identify impairment caused by drug use and not merely drug use in the past. (This latter requirement has since been clarified to apply only when such tests are available.) States that have their own equivalent of OSHA are generally expected to adopt similar rules in the coming months.

So where does this leave you as an employer? Employee drug use is on the rise, particularly marijuana and opioids, and there is a demonstrated, statistical link between employee drug use and increased potential for workplace accidents. But OSHA frowns on blanket, post-accident drug testing. While you could just give in, a better, safer approach may be to keep your drug-free workplace policy in place. In addition, consider (where it is allowed by state law) adding or increasing random drug testing. Also, train employees and supervisors on issues relating to drug use, including the dangers, and to recognize when someone may be impaired based on drugs. Such training is important if you also focus on requiring reasonable suspicion testing. Also, even if you decide not to incur the cost of an employee assistance program, consider compiling a list of resources in the area that employees can turn to in order to address addiction issues. While taking these steps will not eliminate the problems of drug usage in your workplace, they should help … and doing nothing is probably worse.

Douglas H. Duerr is a partner at Elarbee Thompson, a national labor and employment law firm with an industry practice area focused on franchises. Learn more at www.elarbeethompson.com.