Employers’ Legal Responsibilities Around Marijuana

Medical marijuana is legal in 33 states and the District of Columbia. Eleven states also have legalized the drug’s recreational use.

This movement toward legalization poses distinct challenges for employers. While marijuana is classified as a controlled substance under federal law, it is difficult—and expensive—to rely on federal law as a defense to state law claims.

Members of the Farm Equipment Manufacturers Association have a resource they can tap into when attempting to make sense of this issue and other HR legal issues.

Attorney David James, a shareholder in the labor-and-employment group at Nilan Johnson Lewis, will join us at the Marketing & Distribution Convention in St. Louis next month to discuss the HR legal environment as it relates to marijuana. He also was part of a writing team that tackled the subject in a recent issue of Ag Innovator magazine.

In that article, James and Joe Schmitt wrote that employers increasingly are considering removing marijuana from their list of tested drugs for one of two primary reasons. They opt to stay in line with this societal shift, or they find it difficult to hire and retain employees when they choose to test.

The attorneys also reported that it is indeed legal to take disciplinary action against an employee who appears under the influence—any kind of influence—without the benefit of a positive test. The action is subject to greater second-guessing, which makes it more important to document evidence, such as slurred speech or alcohol on the breath.

Marijuana laws do not change the expectation that employees show up sober to work.

Find the complete article on marijuana laws at FarmEquip.org/AGI_spring2019.

James and Schmitt write quarterly for Ag Innovator. Among topics they’ve tackled recently include:

  • Avoiding liability while effectively managing employee performance;
  • Responding to an emerging legal trend expanding employee reimbursements;
  • Shifts in the Overtime Rule from the Department of Labor
  • Protecting trade secrets;
  • Drafting effective discipline to avoid wrongful termination claims;
  • Tips to avoid a wage audit;
  • Understanding religious accommodations in the workplace.

Beyond these four-times-a-year legal advice columns, the attorneys are available to members to ask company-specific legal questions. These 60-minute, no-cost, confidential consultations are about far more than litigation. If you need help drafting an employee handbook, this is a resource. And, of course, consulting the pros when you’re drafting a policy is a valuable first step in preventing those higher-stakes phone calls about litigation.

The service is not limited to one phone call. You are entitled to a new 60 minutes with every legal question. Members who have used this service tell us that a single phone call covered the cost of their annual Association dues.

You can reach Nilan Johnson Lewis at (612) 305-7500. Or, learn more about the firm at nilanjohnson.com. The attorneys will verify your Association membership. Their conversations with member companies are confidential, as would be the case between any attorney and client.