Marijuana legalization is a growing trend in the U.S. Currently, eleven states have fully legalized marijuana, while many others have legalized it for medicinal purposes. Those numbers will grow as well as the regulation concerns among businesses.
Here are the key points to know as your snow business deals with this issue:
• What to Know: Cannabis is only legal on the state level.
For the legalized states, one important distinction to note is that it is only legal on the state level. Federally, marijuana is a schedule I drug and remains illegal. This is important to know for two reasons. First, if your company conducts business in other states, you will need to know the marijuana state laws for all states that you do business in, to plan and hire accordingly.
Secondly, who your clients are and where marijuana use happens could determine jurisdiction. Simply put, in case of a problem with an employee, you could face federal court instead of state. If your employee is in an accident or arrested while plowing federal highways or a federal building parking lot, while under the influence of marijuana, your company could face liability, or even charges, in federal court. It’s a federal crime because it happened on federal property; regardless if you live in a state that freely legalized marijuana.
• What to Do: When in doubt, be strict
Depending on the nature of your business, it might be wise to lean toward a strict drug policy — especially for businesses that operate heavy machinery, like snowplows or vehicles. If one of your employees is under the influence of marijuana (legally or otherwise) and has an accident, you could be liable for the damage. Many companies located in legalized marijuana states maintain a drug policy like the federal standard. To reduce liability, have a business drug policy similar to your alcohol policy (you should have this too!). If you cannot operate vehicles and heavy machinery drunk, perhaps you should have a policy stating you cannot operate them “high.”
• What to Do: Have a Detailed Drug Policy in Your Business Handbook
Every business should have a personalized drug policy. Many companies in the rise of legalized marijuana have enacted lenient drug policies, while other companies have maintained a strict drug policy that includes marijuana. Whatever your company drug policy, know it and have it in your Business Handbook. Be detailed and specific. If there are acceptable THC (tetrahydrocannabinol) levels for your company, list them. If you operate a drug-free company, state it. Most importantly, have your employees read and sign the handbook.
What to Know: The Drug Testing Requirements and Medical Marijuana Laws of your State
Every state has different marijuana laws. Know your states marijuana laws. Be aware of your, “State Medical Marijuana Statutes” to avoid discrimination claims. Jurisdictions are mixed on medical marijuana discrimination. Some jurisdictions ruled having the medical marijuana license is not enough to achieve protected status under discrimination because marijuana is still federally illegal. Other jurisdictions have ruled against an employer for discrimination, specifically for firing employees if the ailment the employee was suffering was severe enough — for instance, cancer or crone’s disease.
Federally, the Department of Transportation requires mandatory drug testing for federal jobs and for individuals who must be licensed through the agency. This includes any Commercial Driver License (CVL) holder, driving vehicles heavier than 26,001 pounds, and drivers in the Gross Vehicle Weight Rating (GVWR) between 10,001 and 26,000 pounds carrying 16 passengers or more. Many snowplows weigh up to 50,000 pounds. This would federally require many snowplow drivers to participate in mandatory drug testing, regardless of where you live.
What to Do: Test for all drugs, not just marijuana.
If your business chooses to participate in mandatory drug testing, be sure to test for all drugs, not just marijuana. This is also to avoid discrimination claims. If the tests are for all drugs, it shows that your company is not targeting marijuana users specifically. The most common test is a urinalysis that tests the THC levels in your body. Most urinalysis tests screen for multiple drugs including marijuana, cocaine, methamphetamine and opiates. But most importantly, have the notice of drug testing in your drug policy, and have all new employees sign it before you conduct the test.
Jared Nusbaum is an attorney with the law firm of Zlimen & McGuiness, PLLC in St. Paul, MN. His practice areas include employment law, small business law, litigation, and bankruptcy. Email him at firstname.lastname@example.org