While many states have enacted legislation permitting marijuana use in some form (you can find more information on marijuana in the workplace in VA, MD, and D.C. 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. While the Americans with Disabilities Act (“ADA”), prohibits employers from discriminating against qualified individuals on the basis of a disability and requires employers to provide reasonable accommodations to employees with disabilities, the ADA specifically excludes protection for individuals “currently engaging in the illegal use of drugs.” “Illegal use of drugs” refers to drugs that are unlawful under the Controlled Substances Act, including marijuana, leading courts to historically find that employers are not required to provide accommodations for the use of medicinal marijuana under the ADA.

More importantly, federal employees and contractors are subject to the Drug Free Workplace Act, which requires federal contractors to meet certain requirements in order 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. The drug-free policies apply to contract employees who are directly engaged in the performance of contract work. While technically the Act only covers employees working directly on the grant, a drug-free workplace for all employees of the organization is advisable.

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, such as by failing to provide a drug-free workplace. Contractors and individuals that have been debarred will not qualify for federal contacts for a period up to five years. Additionally, companies that fail to timely inform the relevant federal agency of drug violations, may similarly face contract suspension, debarment, or termination.

Recently a new bill has been proposed that would allow federal workers to legally use marijuana without risking their jobs. The “Fairness in Federal Drug Testing Under State Laws Act” would remove limitations on federal employment for anyone legally using marijuana in accordance with state law. Under the bill, if an employee resides in a state that permits private use of marijuana, he can’t be denied employment or suffer any other adverse employment action as a result of a positive marijuana drug test. The bill won’t apply to positions requiring top security clearances or failed drug tests resulting from probable cause, such as suspected impairment on the job. The fate of the bill is unclear and it is important for employers to ensure compliance with current federal law, until this, or a similar bill, actually takes effect. However, the bill does highlight a trend in marijuana legislation and the importance of staying up to date with changing regulations.

Employer Obligations

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 5 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, and the potential penalties for violations;
• Notify the contracting agency within 10 days after receiving notice of an employee’s drug conviction; and
• 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 only requires 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, since 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.

Call General Counsel PC Today

Since the law is still evolving, the uncertainty around marijuana in the workplace can make setting workplace policies difficult. General Counsel PC can help you understand the requirements of the Drug Free Workplace Act and create policies to ensure compliance. Our attorneys are specialized in labor and employment law and have experience working with business owners across Maryland, Virginia, and D.C. Call General Counsel PC at 703-556-0411 today to see how we can help you.