With an increasing number of states passing laws to protect employees who utilize marijuana off-duty, employers throughout the country are presently tasked with redesigning their marijuana-related policies and practices to avoid the risk of suffering discrimination, retaliation, and other claims for wrongfully taking adverse action against an employee for their marijuana legal use. However, while an employee may be permitted under state law to engage in the use of marijuana off-site, these laws do not require employers to tolerate marijuana impairment during work time and preserve an employer’s right to take adverse action as a result.
Under these new laws, prior to taking adverse action against an employee for being impaired by marijuana while on-duty, employers are required to comply with state-specific—and for multistate operators, wide ranging—requirements for testing or otherwise detecting articulable symptoms of marijuana impairment. The wide variety of requirements under these state-specific laws, compounded by the fact that both the technologies and best practices for detecting marijuana impairment are presently nonexistent, or subjective and inconsistent, is likely to create additional legal or reputational risk for the employer.
Lack of Industry Standards
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