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an employer must accommodate require an employer to accommodate • Remind employees that on-the-job
an employee’s medical usage. the medical use of marijuana in any impairment is not tolerated and that
workplace or any employee working medical marijuana is no exception.
Marijuana laws vary widely state to state. while under the influence of marijuana.
Of states with medical or recreational This section does not create a cause • Update your drug-free workplace
policy and drug-testing policy and
marijuana use laws, some expressly allow of action against an employer for
employers to enforce their drug-free wrongful discharge or discrimination. procedures (see below example).
workplace policies, including CA, CO, DE, Marijuana, as defined in this section, is • Provide employee education on
FL, IL, MT, NV, NH, and WA. Some have not reimbursable under chapter 440. company policies and impact of legal
anti-discrimination provisions for lawful changes (with emphasis on safety!).
use outside the workplace, including AR, Fla. Stat. § 381.986 • Train supervisors and managers
AZ, CT, DE, IL, ME, MN, NY, NV, PA, and RI. on how to spot issues that may
The most recent state medical marijuana
In California, the California Supreme Court law is in Oklahoma, which many consider need further consideration.
found state law could not completely to be one of the broadest. See https:// • Offer employee assistance where
legalize medical marijuana because ogletree.com/shared-content/content/ appropriate (e.g., for serious health
marijuana remains illegal under federal blog/2018/august/oklahomas-new- conditions under the FMLA or
law. Moreover, because the California medical-marijuana-law-and-your- disabilities under the ADA).
Fair Employment and Housing Act workplace. Under the new law, Oklahoma
(FEHA) does not require employers to employers cannot discriminate in
accommodate the use of illegal drugs, hiring, impose any term or condition of SAMPLE POLICY LANGUAGE
an employer is not in violation of the employment, or otherwise penalize an FOR CONSTRUCTION
FEHA if it refuses to hire someone who employee based on his or her status as a
tests positive for medical marijuana use. medical marijuana license holder or solely INDUSTRY EMPLOYERS
Indeed, an employers’ right to “maintain based on a positive test for marijuana or Employers may want to consider the
a drug and alcohol free workplace” has its components. However, employers may policy below or something similar
even been codified in California Health lawfully take employment action against that focuses on workplace safety and
and Safety Code section 11362.45(f). Some employees (including medical marijuana prohibiting on-the-job intoxication
legislators attempted to introduce a bill to license holders) for the possession of or being under the influence of
change the law, but it is currently stalled. and/or use of marijuana: at the place of marijuana (medical or otherwise).
See https://ogletree.com/shared-content/ work; on or in work property, vehicles,
content/blog/2018/june/californias- or equipment; and/or during work hours Your Safety and Marijuana Usage
medical-marijuana-nondiscrimination-bill- (i.e., off the employers’ property but ConstructCo puts your safety first. The
stalls-foreshadows-similar-legislation. “during the hours of employment”).
safety of our employees, other contractors’
employees, and the general public is our
In Florida, employers are expressly
not required to accommodate WHAT SHOULD highest priority. Although many states have
marijuana use. The law itself states: recently passed laws attempting to legalize
CONTRACTORS DO NOW? medical and recreational marijuana usage,
(15) APPLICABILITY.—This section does not Construction industry employers marijuana usage for any purpose remains
limit the ability of an employer to establish, should take these actions: illegal under federal law and is a serious
continue, or enforce a drug-free workplace • Understand your rights and risk to health and safety on a construction
program or policy. This section does not site. ConstructCo strictly prohibits illegal
responsibilities under your state’s law. drug possession, use, or impairment, and
medical marijuana is no exception, even
if a state has a medical marijuana law.

Before implementing this or any policy
1 MEDICAL: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, impacting marijuana, check with counsel.
Delaware, Florida, Hawaii, Idaho, Illinois, Louisiana, Maine, Maryland, This area is increasingly complex and
Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, nuanced. Above all, focus on safety!
New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon,
Pennsylvania, Rhode Island, Vermont, Washington, and West Virginia
Phillip B. Russell, Ogletree, Deakins,
2 RECREATIONAL: Alaska, California, Colorado, Maine, Massachusetts, Nash, Smoak & Stewart, P.C. (Tampa,
Nevada, Oregon, Vermont, and Washington FL), is Board Certified in labor and
employment law by the Florida Bar.

www.ieci.org | January/February 2019 | Insights Magazine 13