Employment & Labor Insider

With the legalization of marijuana and cannabis products in so many states, dealing with substance abuse in the workplace has become ridiculously complicated.

This is the first of a two-part post. Today, I'll share with you five "fun" facts about drugs and alcohol in the workplace. Next week, I'll post about how employers can or should put it all together.

Fun Fact No. 1: It's ok to ban illegal drugs. In the immortal words of South Park's Mr. Mackey, "Drugs are bad. Don't use drugs, m'kay?"*

*I could not provide a link because everything I found was Not Suitable for Work. Over the long weekend, you can do a search on your personal device.  :-)

Employers can generally test employees "without cause" for illegal drugs. In other words, they can do random, universal, or post-offer testing. If you are in a state where marijuana is still illegal and if you're a private sector employer, you should be able to continue including marijuana in your testing panel. (Assuming you want to.) If someone tests positive post-offer, then you can generally refuse to hire them. If a current employee tests positive, you can generally fire them. But be sure to check the laws in your state before you act.

If you're in a state where marijuana is legal, forget about what I just said. Except the part about checking your state laws.

Fun Fact No. 2: You can generally take action against an employee who uses legal prescription drugs without a valid prescription. Let's say your employee is stressed out one morning and "borrows" his wife's Valium. Then he gets to work and is unlucky enough to be called in for a random drug test. (No wonder he's stressed.) Since Valium is legal with a prescription, he should be excused upon presenting a valid prescription. But of course, this guy can't, because the Valium wasn't his. His wife was the one with the prescription, not him. In many, if not most, jurisdictions you would be able to fire this employee for using a legal drug in an illegal manner. I'm not saying I would, but you probably could if you wanted to.

Fun Fact No. 3: Alcohol is in a glass -- I mean, class -- by itself. Alcohol is legal, of course, assuming you're not under age. With the exception of employees who are covered by federal laws that require testing for alcohol (such as the regulation of the U.S. Department of Transportation for individuals with commercial drivers licenses), employers can test employees for alcohol only if they have "cause." This means that you can't do random or universal testing for alcohol.

However, you can test for alcohol if you have reason to believe that the employee is under the influence. For example, coming to work smelling like a saloon, or stumbling and bumbling and slurring. Or, perhaps, the employee ran over a co-worker with a forklift going 55 mph while belting out "How Dry I Am." Or the employee is returning to work after alcohol rehabilitation and the employee's therapist has recommended periodic testing as part of the therapeutic process. 

These weird rules apply to alcohol because, under the Americans with Disabilities Act, alcoholism is a disability, and an alcohol test is a "medical examination" under the ADA. And an employer cannot require employees to undergo medical examinations unless the examinations are "job-related and consistent with business necessity."

ADA coverage also means that you can't treat an alcoholic employee more harshly than you would a "similarly situated" non-alcoholic. For example, if everybody in the office gets trashed at your annual Christmas party, you can't single out the alcoholic employee for disciplinary action. The would be discrimination based on a disability (alcoholism). Also, under the ADA, you may have to make some reasonable accommodations for alcohol addiction. For the most part, this would consist of things like allowing the employee to take time off from work to go to 12-step meetings or for appointments with counselors. On the other hand, the ADA doesn't require you to "accommodate" the employee's need to keep a fifth of Jack Daniels in her desk drawer, or to tipple throughout the workday. (Unless you let your non-alcoholic employees do the same.)

Fun Fact No. 4: The status of marijuana under federal law may be changing soon. As most of you probably know, marijuana is still an illegal drug under federal law and has been since the 1970s. It is a Schedule I substance, meaning that the federal government says there is no currently accepted medical use for it, and the risks of using it are high. That, in turn, means that a marijuana user -- even a medical marijuana user -- has no protection under the ADA because the ADA does not protect "current users of illegal drugs." No protection against discrimination based on the marijuana use, and no right to reasonable accommodation. But that may be changing. In May, the U.S. Drug Enforcement Administration issued proposed regulations that would reclassify marijuana as a Schedule III substance, meaning that it has some legitimate uses. The comment period on the proposed regs closed on July 22, so a Final Rule rescheduling marijuana may be issued as early as the end of this year.

If marijuana is reclassified as a Schedule III drug, it will still be illegal for recreational use. Even where medical use is concerned, according to this article,  "Schedule 3 drugs must be approved by the Food and Drug Administration (FDA), prescribed by a doctor, and distributed by a pharmacy." But the use of medical marijuana with a valid prescription after FDA approval presumably would make it like any other prescription medication where the ADA is concerned.

Fun Fact No. 5: Controlling use of legal drugs in the workplace is complicated. I'll talk more about this next week, but an issue that employers frequently raise with legal marijuana and with other legal drugs is, "Can we do anything about that?" You might have jobs where the use of legal medications could have an impact on safety, or on an employee's ability to competently perform the job. Let's put marijuana to the side for a minute. Suppose your employee has a back injury and is taking prescription opiates. It's his prescription, not his wife's. Perfectly legit. 

But you're concerned because he starts making dumb mistakes with his work, falling asleep at his desk, and seeming dizzy when walking around. Can you do anything about this?

Tune in next week and find out! We'll have more on marijuana then, too. 

And have a great Labor Day weekend!