The times they are a-changin’. Twenty-nine states, DC, Puerto Rico and Guam now have laws legalizing some form of marijuana, with fourteen more states expected to pass similar laws this year alone. Meanwhile, back at the ranch, America is in the depths of an escalating public health crisis, with the opioid epidemic now classified as the leading cause of death among Americans under fifty. National drug use is at an all-time high and employers need to know how to protect themselves.
Fortunately for private employers, there is almost no limitation under Texas or federal law on the right to maintain and enforce a drug-free workplace. Most employers can require their employees submit to drug testing at any time, including pre-employment, post-accident, randomly and for-cause. Generally, a positive drug test is a sufficient basis upon which to withdraw an offer or terminate an employee, provided that the drugs are not legally prescribed and properly taken medication.
The Americans with Disabilities Act requires employers to make reasonable accommodations for employee medical conditions, which generally extend to the medication prescribed to treat those conditions. Employers are prohibited from imposing a blanket ban against on-the-job prescription drug use and must treat each instance individually, assessing any effect of the prescription on the employee’s ability to perform their job safely and, if necessary, provide a reasonable accommodation.
So what about prescription drugs that come from the dispensary? Employee use of medical marijuana is quickly becoming one of the most heavily litigated and evolving areas of employment law. For now, marijuana is still classified as an illegal drug under federal law. Therefore, federal law does not require private employers to accommodate medical marijuana use, even in states which have legalized it. However, some state courts have recently held that failure to accommodate medical marijuana use may be a violation of state disability laws. (Barbuto v. Advantage Sales & Marketing, LLC (Massachusetts)) (Callaghan v. Darlington Fabrics Corp. (Rhode Island)). In Texas, marijuana is illegal for both medicinal and recreational purposes (although it does allow medicinal cannabidiol, a cannabis oil with low THC, the chemical compound responsible for psychoactivity and which results in a positive drug test).
For employers, maintaining a safe and drug-free workplace is an essential part of managing risk and limiting liability. Every employer should have a clear and comprehensive zero-tolerance drug policy that specifies which employees will be covered and what disciplinary measures will result from a violation. Have your employees sign the policy and remember to keep any results strictly confidential. Finally, and most importantly in employee lawsuit prevention, enforce the policy consistently. Haphazardly enforced drug policies create the implication of favoritism and can be a perfect catalyst for expensive discrimination claims.