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Hawaii medical marijuana law and the workplace

Medical marijuana leaf

Medical marijuana is at the epicenter of an increasingly difficult intersection of substance abuse policies in the workplace and law.

  • April 2018 update: Proposed new legislation could require employers to accommodate medical marijuana users (See: HB 2729). Employers are encouraged to stay abreast of ongoing legal developments.

On the books in Hawaii since 2000, local medical marijuana law was expanded July 2015 to make way for a dispensary system to start in 2016, suggesting that the number of legal medical marijuana patients will continue to grow. But how does this play out at companies with a zero-tolerance drug policy?

Legal challenges thus far have deferred to federal law. Generally, an employee using medical marijuana cannot claim accommodation under federal disability rights law and can be discharged after a positive drug test. Hawaii state law allows for the acquisition, possession and use of marijuana for medical purposes, but it remains a schedule I drug federally and locally.

At the same time, Hawaii law protects the right to a zero-tolerance policy, explicitly stating that medical marijuana is not authorized “in the workplace of one’s employment.”

Other complex employment issues may arise with an applicant or employee legally using medical marijuana; consultation with an employment expert is always recommended.

If courts begin interpreting the law in favor of state legalization laws, employers may have to tolerate medical marijuana use and revise their drug policies or even drop marijuana testing altogether. For now however, Hawaii business owners can establish their policy as they see fit, within the boundaries of the law.

Understandably, medical cannabis remains illegal for safety‐sensitive transportation workers in industries regulated by the U.S. Department of Transportation—a group that includes truck drivers, school bus drivers, pilots, airline maintenance personnel and ship captains.

Similarly, federal contractors are subject to the Drug Free Workplace Act, requiring enforcement of zero-tolerance policies. Regardless of state laws allowing medical or recreational use, there is zero tolerance at the federal level.

Medical marijuana and your company drug policy

Marijuana can stay in a user’s system for weeks after ingestion, long after any intoxicating effects have worn off. What will your response be if an employee randomly tests positive and has a physician’s prescription for medical marijuana?

Amid a swirl of changing laws and possible future lawsuits, a clearly defined substance abuse policy is the best way to protect your business. Professional counsel is recommended, but here are a few points to consider regarding your company drug policy:

  • Make sure your policy is in writing and up to date. So simple, yet so important.
  • In a “drug-free workplace,” the policy should specifically prohibit marijuana, including medical marijuana, for purposes of employment.
  • Clearly communicate the policy to your employees using various means (training, email, public posting, etc.).
  • Apply the policy consistently.
  • Understand and abide by industry-specific laws.
  • Stay current with federal and state law, or hire someone who does.

If you have any further questions regarding medical marijuana or your company’s drug policy, contact one of our helpful HR Consultants.

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney, accountant or adviser before acting upon any information in this article.

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