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Employee Rights and Protections

As of the signing of the Marihuana Regulation and Taxation Act, it is unlawful to discriminate or use disciplinary actions against employees for their lawful use of cannabis. It is important to understand what lawful use of cannabis entails. Using cannabis is legal before and after an employee’s work hours. It is also legal for employees to use cannabis during paid and unpaid breaks and meals, but must not be used in the employer’s equipment or on employer’s property.

Employers’ Rights and Protections

Though employees can use marijuana before and after work, this does not permit employees to come into work while under the influence of pot. There is no doubt some gray area in this portion of the law, which will likely be better defined as companies write new employment handbooks dealing with the use of marijuana in and around the workplace.

If an employer functions under or is paid by federal monies, the disciplinary actions made available to them for the use of marijuana by employees may be different. As stated in a previous blog about marijuana and the workplace, “if your company is at all provided with federal government contracts, or monies, then drug testing is required.” The stipulations within your company’s contracts with federal bodies should be examined closely when considering changing policies around your company’s tolerance and use rules.

A Sticky Phrase

Under the law, if an employee displays “specific articulable symptoms” that affect their work performance negatively and does not allow them to complete their duties, or the employee is disrupting the safety of the workplace according to state and federal safety and health laws, then said employee may be in violation of being impaired at work.

The law uses the phrase “specific articulable symptoms” but does not actually define this term in the legislation written. Because of this lack of a legal definition, employers bare the burden of weighing the risks of misinterpreting this phrase and disciplining an employee or erring on leniency to not impede on the rights of an employee. This phrase will cause some trouble in the legal world in the future, especially in cases of unlawful dismissals of employees. It is important to consult your human resources department, legal counsel, or employment professionals before making hiring and firing decisions based around marijuana use.

Drug Testing Your Employees

The new law does not prohibit employment verification services, including drug testing of current or prospective employees for cannabis, however pre employment testing has changed. Due to the new Cannabis Law, employers cannot discriminate against, fire or refuse to hire employees due to a positive result on a pre employment cannabis test.

There are exceptions to this part of the new Cannabis Law. Ten panel drug testing (the most commonly administered test) can be done, and employment can be based upon results in the following areas of work:

-Police or Peace Officers

-Those who supervise children

-CDL or commercial licensed drivers

-Any job position that drug testing is required by law

What’s Next?

It is essential for employers to stay up to date with all that has and may continue to change with the Cannabis Law. With the world taking steps towards getting back to work with a full workforce, employment screening and drug testing will be required to understand who you are employing. There have been many changes over the past year and staying up to date can be difficult. If you need to understand more about what your rights are as an employer and what kind of testing you can provide, whether it is for current or prospective employees, Employment Screening Services can help you. Give us a call or leave your information here and we can work with you to make the right steps forward with new and existing employees.