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In this edition of Ask General Counsel, we discuss whether federal or government contractor employees can use marijuana. Located in McLean, the attorneys of General Counsel, P.C. have been representing employers, non-profit entities, and individuals since 2004.
While many states have enacted legislation permitting marijuana use in some form (you can find more information on marijuana in the workplace in Virginia, Maryland and the District of Columbia here), marijuana use is still prohibited under federal law. Specifically, under the federal Controlled Substances Act, marijuana is prohibited as a Schedule 1 illegal drug.
Federal employees and contractors are subject to the Drug Free Workplace Act, which requires federal contractors to meet certain requirements to be eligible for federal contacts. Under this act, any company that receives a federal contact of at least $100,000 and any organization that receives a federal grant of any amount must maintain a drug-free workplace policy and a drug-free awareness program. Federal contract conditions must be maintained throughout the life of the contract. A contact may be suspended, debarred or terminated if a contractor is found in violation of the Drug-Free Workplace Act.
Despite a state’s employment protections for users of medical marijuana, such protections don’t extend to federal employees or contractors. In the workplace, these federal employees or contractors are subject to federal law. To be in compliance with federal law, specifically the Drug Free Workplace Act, qualifying employers must:
- Publish a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the workplace and specify what actions will be taken for violations of the prohibition.
- Ensure that each employee engaged in the performance of a federal contract receives a copy of the statement.
- Notify employees that as condition of employment, the employee must abide by the statement and notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after the conviction.
- Establish a drug-free awareness program to inform employees of the dangers of drug abuse in the workplace, the drug-free workplace policy, available drug counseling, rehabilitation and employee assistance programs, along with the potential penalties for violations.
- Notify the contracting agency within 10 days after receiving notice of an employee’s drug conviction.
- Impose a sanction on any employee who is convicted of a criminal drug offense, or require participation in a drug abuse assistance or rehabilitation program.
It is important to note that compliance with the Drug Free Workplace Act does not require employers to terminate employees for drug-related violations. While employers are free to terminate employees who violate the drug-free workplace policy, compliance with the act requires only a sanction of some kind. The required sanction can be mandatory counseling or some other type of participation in an employee assistance program.
It is also notable that the Drug Free Workplace Act only requires a drug-free policy in the workplace. The act doesn’t regulate employee marijuana use outside of the workplace, with an exception for criminal drug convictions. Additionally, the Drug Free Workplace Act doesn’t require employers to drug test applicants or employees but also doesn’t prohibit employers from drug testing if they choose to.
Employers may decide that drug testing isn’t beneficial, because a positive drug test doesn’t necessarily mean that an employee was using marijuana in the workplace. Employers need to do a cost/benefit analysis for their individual workplaces to decide the policies that work best for them.
Whether you are an employer or employee, if you have questions about the legality and ramifications of marijuana use, contact the attorneys of General Counsel, P.C. at firstname.lastname@example.org.