Strange Clouds Is the Legalization of Medical Marijuana and CBD Oil Blurring Employers’ Drug Policies How Should Your Company Respond
In 1996, Brandon Coats was a normal sixteen-year-old boy whose life changed when he was a passenger in a vehicle that struck a tree. Coats’ spine was irreparably damaged. The accident paralyzed over 80 percent of his body, and he has suffered from severe involuntary muscle spasms and seizures for the past twenty years. Brandon Coats also now has a prescription for medical marijuana to combat these spasms and seizures. He lives in Colorado where there are liberal laws regarding marijuana possession and use.
How does Coats’ story affect you as a Texas business owner While Coats injuries are tragic, his story may have already influenced the creation of legislation regarding employers’ workplace drug policies.
Coats V. Dish Network
Coats was eventually fired from Dish Network for failing a random drug test administered as part of Dish’s zero-tolerance drug testing. Coats sued Dish, and the trial court ruled that, under Colorado’s lawful activity statute, Dish was within their rights to test Coats and fire him for his medical marijuana usage. The Colorado Supreme Court upheld the decision concluding that “lawful” under the statute included state and federal laws, and marijuana use is still prohibited by federal law. Many states were awaiting the outcome of this decision, and it may have already affected legislation in California.
California’s Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64)
The California legislature passed prop. 64 in November 2016, which legalizes recreational use of marijuana by adults 21 years of age and older. Notably, employers’ right to maintain drug-free workplaces or drug testing policies were not altered.
In fact, the law’s purpose is to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The law also states that it will not be construed or interpreted to amend, repeal, affect, restrict or preempt “(t)he rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”
Cannabidiol Oil in Texas
Many believe marijuana is completely illegal in Texas, but that is not the case. On May 25, 2015, Attorney General Greg Abbott approved the legalization of cannabidiol (CBD) oil, a component of marijuana, that may help epilepsy patients avoid debilitating seizures. Texas is now the 15th state to legalize non-intoxicating cannabidiol oil. The Texas Department of Public Safety is overseeing the program, and at least three operational CBD oil dispensaries should open by September 2017. The law could potentially help 150,000 Texans currently suffering from epilepsy. However, the law has strict standards to obtain a prescription and may leave many CBD Oil seekers without a prescription. Patients who may not be able to afford prescription CBD, who do not meet the strict standards of the Texas law, or who prefer the benefits of CBD combined with THC (which some say is more effective) may attempt to procure CBD oil from untrustworthy sources. While quality non-intoxicating CBD Oil does not cause failed tests, CBD oil from these untrustworthy sources can lead to failed drug tests despite employees’ good intentions.
For the reasons stated above, companies must have a clearly stated workplace drug policy in place. Workplace drug policies help prevent controversy within the workplace about drug use and the employer’s right to determine the workplace environment.
Employer Workplace Drug Policies
While it is important to consult a lawyer regarding your state’s legislation, similar to most effective workplace policies, the key to an effective workplace drug policy is communication. Employers should clearly communicate their policies regarding drug use and drug testing.
If you are an employer who wants to maintain a zero-tolerance policy, the Coats decision may have been just what the doctor ordered. (pun intended; here’s looking at you Terwey). Many states’ laws and federal laws still outlaw marijuana possession and use. If you have a zero-tolerance policy in one of those states, you have a right to, and all employers have a duty to prevent their employees from working while impaired. However, you must specifically communicate what is acceptable and what is not, and the specifics regarding usage and testing.
If you are an employer in a state where marijuana laws are loosening, you still need protection from liability. In many states, employers may prohibit the use and possession of marijuana at work or prohibit employees from working while impaired regardless of whether it was prescribed or recreational, and employers may require any necessary drug testing. However, communication is key.
Employers should outline that their policy applies to both medical and recreational uses. The employer should make it clear that being under the influence of any illegal or controlled substance, including marijuana and alcohol while performing company business is prohibited. Additionally, the policy should state that the sale, possession, or use of drugs and alcohol, including marijuana, while performing company business is prohibited.