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The legalization of marijuana in Nevada and other states has added multiple factors to the goal of a drug-free workplace.

This article looks at the challenges facing employers when dealing with medical marijuana, legalized marijuana, and drug-testing requirements.

The US Drug Enforcement Agency has a classification system for drugs. Drugs fall into five classes or “schedules.” Schedule I drugs are considered to have no currently accepted medical use, and have a high potential for abuse.

Marijuana is listed as a Schedule I drug, along with heroin, LSD, Ecstasy, Quaaludes, and several other substances.

Nevada citizens were asked to vote twice on the issue of medical marijuana. The measure passed twice–in 1998 and again in 2000–thereby clearing the way in Nevada for medical marijuana.

Soon the question arose whether employers in Nevada were required to make a “reasonable accommodation” for employees who had been prescribed marijuana for medical purposes. It’s a complicated issue, because the concept of “reasonable accommodation” is part of the Americans with Disabilities Act. However, that same law says that employers can require that employees conform to the Drug-Free Workplace Act.

It gets even more complicated:

Certain jobs can be thought of as “safety sensitive.” The employee sitting in the cab of a huge crane and the person doing the accounting both hold important jobs within a crane company, but the crane operator is in a “safety sensitive” position. So is the supervisor who sits at a desk—if that supervisor may be called upon at a moment’s notice to fill in for the crane operator.

What happens when “reasonable accommodation” meets “safety sensitive”?

Though the legal and regulatory landscape is rapidly evolving, it appears that employers can adopt a zero-tolerance policy for safety-sensitive jobs. However, it’s important that those jobs be defined clearly in writing as safety sensitive.

In 2016, Nevada voters legalized the sale of marijuana for recreational use, with the first store opening in July, 2017.

Here’s the big question: How does an employer–with a business to run–balance the rights of employees, their privacy, workplace safety, state law, federal law, business liability—and profitability?

That’s a tall order.

With all these factors in play, it would seem that everything is a “gray area.” It turns out that not everything is open to interpretation and judgment. One aspect of workplace safety practices remains crystal clear:

If you are regulated by DOT, then you must test for marijuana and treat marijuana use as a violation of DOT policy. (If you’re not sure whether you are DOT-regulated, we have information about it here.)

The DOT Office of Drug and Alcohol Policy and Compliance issued a written statement that leaves no doubt where it stands. Here are the key points:

• State initiatives will have no bearing on DOT’s drug testing program.
• DOT continues to consider marijuana to be a Schedule I drug, and does not authorize its use for any reason.
• The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.
• That means Medical Review Officers (“MROs”) must not verify a drug test as negative based upon learning that the employee used “recreational marijuana” in Nevada and other states that have passed “recreational marijuana” initiatives.
• Even if a physician recommended that an employee use “medical marijuana”, DOT insists that an MRO must not verify a drug test as negative if it came back positive for marijuana.
• It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

DOT concluded its policy update by saying: “We want to assure the traveling public that our transportation system is the safest it can possibly be.”

Some time after DOT issued the above guidelines, you may remember that the Obama Administration announced that it would be prioritizing its prosecutions of marijuana-related violations. The announcement stopped short of saying that the federal government recognized marijuana as legal; instead it suggested that prosecutors place a lower priority on going after individuals who followed state guidelines.

Here we have one arm of the federal government (DOT) saying that marijuana was still a Schedule I drug with zero legitimate role in the workplace, and another arm (Department of Justice or “DOJ”) saying that prosecutions of individuals should be a lower priority. What is an employer to make of all that?

Fortunately, DOT anticipated the confusion and came out with further guidance:

We have had several inquiries about whether the DOJ advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety‐sensitive transportation employees…We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.

Our goal in this article is not to clarify all aspects of marijuana use in the workplace. That’s impossible to achieve without knowing the specifics of your own unique situation. Instead we hope we’ve made a start at listing the many factors that need to be considered when employers try to balance state law, federal regulations, workplace safety, and employee rights, among other factors.

Because this is such a complex area, we created a checklist that focuses on how employers can limit liability and help to create a safe working environment. You can find that here.