Medical marijuana: What’s your business’ policy?

Posted on: July 16th, 2019

The legalization of medical marijuana is here – and for businesses, no matter which side of the fence you land on, it could make an impact.

Recently, smoking medical marijuana was legalized in Florida, sparking a conversation among the CFO Strategic Partners team about how the continued changes to medical marijuana laws nationwide could potentially affect businesses. While medical marijuana is legal in some states, marijuana is classified as a Schedule 1 substance under the Controlled Substances Act. Schedule 1 drugs are considered to have a high potential for dependency and are not accepted for medical use, making marijuana illegal on a federal level.

This discrepancy between state and federal laws regarding marijuana obviously leaves business owners with questions. What should your policy be regarding medical marijuana and your employees? Should you even have a policy?

With so much in flux, it can be difficult to find a starting point. To help, our CFOs put together some of the top things to consider regarding a medical marijuana policy for your business.

  • Drug testing

Typically, if an employer drug tests employees, they do it in one of three ways: a.) they test all new hires b.) they test in the event of an accident or c.) they test under reasonable suspicion. Employers must be very careful with this to avoid claims of discrimination.

Medical marijuana adds another complication to the testing process. While some employers in states where medical marijuana is legal do NOT consider a positive test with a medical marijuana card a violation (more on that later), others do consider it a fireable offensive or prohibition to hiring.

Some decide this is the right policy for them because of insurance requirements or because they receive federal funding (more on this later, too). If this is the policy, however, companies must be sure to allow medical marijuana card holders to go through drug testing and receive a positive test before dismissing a candidate—otherwise, this, too, could be considered discrimination.

  • A wider drug policy

Other companies where medical marijuana is legal decide to lean toward state law. In these situations, companies tend to look at medical marijuana as part of a larger company drug policy rather than something to address specifically. That is to say, they treat it like any other medical drug an employee might take for any reason.

In terms of drug testing, these companies might not consider it a positive test if the employee has a medical marijuana prescription. This might not be an issue, even for insurance, if the candidate fully discloses the reason for the positive test and it is well documented (just as might be the case with certain prescription drugs or with certain antibiotics, which might trigger positive drug tests).

It should be noted, however, that companies that consider medical marijuana like other drugs should follow that through. They should make every effort to explain drug policies—including medical marijuana—during orientation or training. Just as employees can’t come to work intoxicated on legal alcohol, they can’t come to work impaired, even if they use marijuana medicinally.

  • Federal law

While medical marijuana is becoming more widely accepted and legalized in more states, it is still illegal federally. That means employees of the federal government—regardless of what state they live in—are still not allowed to use medical marijuana. It also means employers who receive federal funding could be at risk of losing that funding if they allow the use of medical marijuana. Finally, some companies worry that because federal law reigns, allowing medical marijuana could open them up to risk.

Truly, the landscape for how businesses handle medical marijuana is just forming. We fully expect the battle over legality to intensify over the next few years as situations arise and states and the federal government iron out answers.

Best practices on policies will change, and we at CFO Strategic Partners will watch with interest and advise our clients. Until then, however, ignoring the situation for businesses won’t make it disappear. It’s important for businesses to begin to think through these policies and have a plan in place for addressing some of these issues, even if they don’t officially take a position in the employee handbook.

Looking for advice on how to handle medical marijuana or other complicated legislation? Put the power of our CFOs to work for you. Call 407-426-8288 or email Shannon@cfosp.com. Let’s start the conversation.

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