Consider the following scenario: Janie is employed as a help desk clerk to perform work on a federal government contract and is a model employee. She has a perfect attendance record, performs her job responsibilities with enthusiasm, and is always a team player. Pursuant to company policy, one day Janie is subjected to a random drug test. The results show she tested positive for THC, consistent with the use of marijuana. What options does her employer have?
As a government contractor, is Janie’s employer required to terminate her employment pursuant to their obligations under the Drug-Free Workplace Act (DFWA)? Not quite. Not only does her employer not necessarily have an obligation to fire Janie, but, depending on the state of employment and the circumstances surrounding Janie’s use of marijuana, terminating her could actually pose legal risks to the company.
Passed in 1988, the DFWA requires employers to make a “good faith effort” to maintain drug-free workplaces and prohibits the use, distribution, and possession of drugs on federal contracting worksites. It also requires that contractors implement drug-free workplace policies and that they take direct action against an employee convicted of a workplace drug violation. This action could involve a number of disciplinary measures, from requiring the employee to participate in an appropriate rehabilitation program to termination of employment.
Although some contracts and job functions do require drug testing, unbeknownst to many, the DFWA itself does not require testing. Nor does the law prohibit federal contractors from employing someone who uses illicit drugs outside of the workplace. This reality presents some unique challenges for federal contractors in states where legislators have legalized marijuana use. While concerns about contract compliance and workplace safety still exist, for many contractors, a one-size-fits-all termination model is no longer feasible due to scrutiny over the disparate impact of testing on minority populations, difficulty in recruiting (and keeping) qualified personnel, and increasing marijuana use for medical purposes. In some states, courts have found that a company may in fact be obligated to accommodate an employee’s use of marijuana if the use is for medical purposes and refraining from use is not an essential function of the job. These concerns are complicated further by the fact that testing for marijuana use cannot yet provide information about the time of intoxication, meaning that an employee could have used marijuana during non-work hours and still test positive.
Thirty-five states and the District of Columbia have legalized marijuana for medical or recreational purposes, and the number of applicants and employees that engage in use is only increasing. Given the legal risks and practical challenges involved, contractors should take time to review their drug-free workplace policies and testing procedures before they are faced with a difficult decision. Companies should also seek counsel when faced with difficult testing or hiring questions that can expose them to legal risk. It is much easier to defend against claims when a client has thought about these issues in advance and is prepared to face difficult workplace decisions that balance legal risks with critical business needs.
About the Author: Sarah Nash is an associate with PilieroMazza in the Labor & Employment Law Group. She may be reached at snash@pilieromazza.com.