The legalization of marijuana and cannabis products in various states has created some complications for employers. Below are four points about drugs and alcohol in the workplace.

1️⃣ Say No To Drugs 🛑

Employers can ban illegal drugs in the workplace. Duh. Further, private sector employers can generally test employees “without cause” for illegal drugs. That means, for the most part, they can randomly test as well as test post-employment offer. When it comes to marijuana, if you’re in a where it is still illegal and you’re a private sector employer, marijuana can likely still be something you’re looking for on a drug test. 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. Now, all of the above is subject to your local state laws. So, make sure you check with an employment lawyer in your jurisdiction before you do anything. Also, if you’re in a state where marijuana is legal, then none of the above likely applies and again, CHECK YOUR LOCAL STATE LAW❗️

2️⃣ Marijuana Under Federal Law

Marijuana remains an illegal Schedule I drug under federal law. That means that under federal law, there is no currently accepted medical use for it. Consequently, 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.” Thus, there is no protection against discrimination based on the marijuana use, and no right to a reasonable accommodation. However, 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. We may see a change as early as the end of this year. IF marijuana is reclassified, it will remain illegal under federal law for recreational use, but the use of medical marijuana with a valid prescription after FDA approval presumably may make it like any other prescription medication where the ADA is concerned.

3️⃣What about using legal prescription drugs without a valid prescription?

Employers can generally take action against an employee who uses legal prescription drugs without a valid prescription. Of course, make sure to check your state’s laws.

4️⃣ Happy Hour Anyone? 🥃🥂🍻

Obviously, alcohol is legal. To that end, that generally means that 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, that doesn’t mean employees can come to work under the influence. Thus, employers generally can test for alcohol if there is reason to believe that the employee is under the influence. Importantly, under the ADA, alcoholism is a disability, making an alcohol test a “medical examination” under the ADA. Employers generally cannot require employees to undergo medical examinations unless the examinations are “job-related and consistent with business necessity.” Since alcoholism is  disability under the ADA, that triggers the anti-discrimination provisions of the ADA. Also, an employer may have to make some reasonable accommodations for alcohol addiction.

Again, when dealing with drugs and alcohol in the workplace, employers should always consult local labor and employment counsel before acting.