For many Louisianans, the Mardi Gras and President’s Day office and school closures equate with travel time. For some, it will mean a time to flock west to hit the slopes – including in Colorado, a state that has legalized marijuana for recreational use.
Employers in many states have grappled with the legal and practical problems associated with the legalization of marijuana. On November 4, 2014, Oregon, Alaska, and Washington, D.C. joined the host of states that have legalized marijuana for recreational and/or medicinal use. Louisiana is not among those states. (Technically, marijuana is legal in Louisiana for medicinal purposes, but the law does not allow for the legal dispensing of marijuana). However, as recently reported by sites including nola.com, Louisiana lawmakers will again consider a bill to legalize marijuana for medicinal purposes during the Louisiana Legislature’s spring session.
But, workplace concerns and questions regarding the impact of legalization are not limited to employers with operations in states where marijuana use is legal, particularly as Louisiana employees travel to other states. For example, how should a Louisiana employer react to a Facebook post that shows a “festive” Louisiana employee using marijuana for recreational purposes while on vacation in Colorado? The employee may not be “impaired” when he returns to work several days later, but the employee may still have traces of marijuana in his system or may still test positive for marijuana use. Does the employer’s knowledge of the Facebook post trigger reasonable suspicion testing? Has the employee violated company policy, particularly a “zero tolerance” policy? Can the employee be subject to discipline for engaging in an off-duty activity that is lawful in another state but which would be illegal if done in Louisiana?
For a Louisiana employer, the answer to many of these questions will turn on company policy and whether the employer is bound by state or federal regulations, such as the federal Department of Transportation and related agency regulations. Marijuana remains an illegal drug listed in Schedule 1 of the federal Controlled Substances Act, and marijuana use is still illegal under federal law. The company’s drug testing policy is another critical component of this analysis, and company policy should be considered and applied in a consistent manner.
For all employers, it is important to review and update company drug and alcohol testing policies. For some employers, it may be prudent to acknowledge that some marijuana use may be legal in some states under some circumstances, but to reiterate that any marijuana use is prohibited by federal law and company policy. Moreover, employers should consider and then properly articulate exactly what the company intends to prohibit, i.e. “working under the influence” of a controlled substance, or having “any detectable level of any controlled substance” in the employee’s system,” etc.
A comprehensive discussion of the state laws and court decisions in this emerging areas can be found here.