More than 20 states and the District of Columbia have legalized medical marijuana or are permitting its use for recreational consumption.

Regardless of why states have legalized marijuana, its use remains illegal under federal law and therefore does not eliminate an employer's right to maintain a drug-free workplace. In fact, if your business is subject to federal compliance requirements or does business with the federal government, you could be at risk of violating federal contracts if you permit marijuana use by your employees. Additionally, many states that have legalized medical marijuana continue to prohibit its use during working hours as well as prohibit coming to work impaired.

Wrongful termination lawsuits are emerging as an area of risk for companies who fire employees that test positive for legal off-duty use of medical marijuana. State courts in California, Michigan, Oregon and Washington have upheld the firing of medical marijuana users who test positive on the job in cases where companies had a thorough and well-communicated drug and alcohol policy.

Clearly spelling out and communicating to employees which behaviors are prohibited, how your company conducts drug tests and what happens when an employee gets a positive screen will be critical to minimizing business risk and maintaining compliance with both state and federal laws.

How much is too much?

While there is debate as to the actual legal blood level that corresponds to being under the influence of marijuana, the current limit for marijuana in the blood is 5 nanograms of active THC per milliliter of blood, according to the U.S. Department of Transportation. Unlike blood-alcohol content, which generally correlates body weight with the number of drinks consumed, marijuana affects people in varying ways, while influence can also depend on the way the drug is consumed.

According to Todd Macumber, President/CEO of HUB International's Risk Services Division, there are a few things every employer can do to limit their risk.

  • Review Your Drug and Alcohol Policy - A comprehensive policy will include sections on prohibited behavior, drug testing and consequences for policy violations. These three sections are critical links that must be connected when it comes to marijuana in the workplace. A prohibited conduct section will include many different types of behavior that the company considers inappropriate, including: being under the influence of marijuana as defined by the company and testing positive for marijuana. As learned in some recent cases, companies can define the term "under the influence" to include testing positive for marijuana. The drug testing section should describe what drugs the company will test for, the cut-off levels that will be considered positive and the testing method(s) that will be used.
  • Review Employee Hiring and On Boarding Practices - Common background tests by employers only reveal what people have already been caught doing. Instead, many companies today are turning to behavioral testing, which can help predict adverse behaviors including rule violation of drug use. In addition to screening, make sure all new employees fully understand the company's expectations regarding drug and alcohol use.
  • Understand your Drug Screening Options - Drug testing is always a good business decision, but not all drug testing methods and products are the same. Employers should be very specific in describing how drug testing will be conducted in their drug and alcohol policy. This will include specifics like testing methodology (saliva testing will focus on the 24 to 48 hour window of impairment, while a hair sample will test for lingering levels up to 90 days later) and disciplinary actions when testing positive while on the job. Consider your initial and ongoing screening policies.
  • Reasonable Suspicion Training - Training supervisors to assess an employee's behavior for reasonable suspicion of drug use includes teaching them how to recognize behaviors signaling that alcohol or drugs, including marijuana, are impairing an employee's ability to function normally in their job.
  • Review your Insurance Coverage and Understand Your Carrier's Expectations - If you determine that an employee was under the influence of drugs or alcohol at the time of a job-related injury, it's important to understand the ramifications of a related workers' compensation claim.

Insurers have recently seen a spike in workers' compensation claims related to medical marijuana use. The National Council on Compensation Insurance already considered it one of the top issues for workers' compensation in 2014.

Businesses can be proactive about this issue. Start by reaching out to a HUB risk services consultant to help create or review your existing drug and alcohol policy, hiring and onboarding process and instituting behavioral screenings will ensure that your company minimizes its risk and maintains a drug-free environment.

Businesses may even qualify for a discount on their workers' compensation premiums if they have a drug and alcohol policy, conduct pre-employment testing of all new hires, random testing, reasonable suspicion test, post-accident testing and return-to-duty testing.