This is a trick question designed to test your basic knowledge of marijuana law. Generally speaking, doctors may not “prescribe” marijuana to patients for any reason, because marijuana is a Schedule I controlled substance.
The Controlled Substances Act of 1970 classifies drugs with a potential for abuse into five schedules, and Schedule I is reserved for the worst of the worst, including heroin, LSD, mescaline, and … marijuana. Marijuana, says the federal government, must remain on Schedule I because it has a high potential for abuse, has no accepted medical use in treatment in the United States, and is not accepted as “safe” for use under medical supervision.
Meanwhile, some 21 states plus the District of Columbia make medical marijuana available to patients with a physician’s recommendation, since federal law prohibits prescribing marijuana.
Reasonable people may wonder how federal and state law can differ so wildly on the harmfulness of marijuana. The answer seems to be that the Nixon Administration put marijuana on Schedule I, and it has remained there ever since, due to further parsing of the term “accepted medical use” by a former DEA administrator.
Be that as it may, employees are using marijuana with their doctors’ blessing, and we need to know what to do about it. HR managers should consider what they want to do about medical marijuana use (and why), and what the law permits them to do.
Almost everyone agrees that we don’t want our employees coming to work stoned. But what about employees who use marijuana on their own time? A Urinalysis test can detect marijuana use that occurred more than a month ago. Do you want that information, and what will you do with it if you have it?
In most cases, employers may adopt zero-tolerance toward marijuana use for whatever reasons they wish, but it makes the most sense when employees are engaged in safety-sensitive occupations. If your employee is operating heavy equipment, driving a vehicle or forklift on your behalf, or is otherwise in a position to kill (or hurt) someone, then the sanctity of their off-duty activities should be the least of your concerns. In these situations aggressive (read: random) testing is appropriate, if permitted by your state’s laws.
But what if someone flies a desk for a living, or is otherwise unable to harm someone else if they come to work hung over from the previous evening’s shenanigans? Assuming state law permits it, you could test these employees aggressively, as well. But at a certain point, you may be saddled with a reputation as an employer people prefer not to work for.
The second question-what to do with the employee using medical marijuana in their own time with a doctor’s recommendation-is largely up to you. Again, check your state’s laws, but in most cases, nothing prevents the employer from taking any action they wish, from ignoring the test results, to rehabilitation, to termination.