By Adam Bartrom, guest author

This area of the law reminds me of one of my favorite lines from the movie Fletch. While Fletch is impersonating a police officer (disclaimer: you should not do that), a teenager asks Fletch if he is going to jail for car theft. Fletch asks: “Why? Did you steal the car?

I sure did,” says the teen.

Without missing a beat, Fletch responds: “Well, I am not even sure that a crime anymore. There’ve been a lot of changes in the law.”

That is the world of employee drug use. Laws are constantly in flux regarding medical use, CBD oil, decriminalization, legalization, drug testing and discipline for drug use. These are many of the questions storming through companies and leaving a wake of confusion. While this is a complex area of the law, here are three things you that need to know:

  1. Drug Testing – Is it OK? It has long been understood that private employers were within their rights to conduct testing for new hires, based on reasonable suspicion, and in post-accident situations. However, recently the federal government (through OSHA) handed down new rules that were meant to address recordkeeping requirements but spilled over into the area of employee drug testing.

OSHA took the position that blanket rules requiring post-accident drug testing would violate anti-retaliation rules (i.e. they would deter employees from reporting accidents). In the wake of the new rules, employers had to take a closer look at their drug testing policies and roll back rules requiring automatic drug testing in the event of accidents. While employers can still test in these situations, they must use discretion and have a reasonable belief that drug use contributed to the accident.  Yet, consistent with this area of the law, changes may be coming soon.

  1. Employee Drug Use – Is it Legal? Over half of the states now permit some form of medical marijuana use, a handful of others are battling over CBD-product laws and still many others allow for recreational marijuana use. The confusion arising from this moving target is compounded by federal law, which still criminalizes marijuana. This leaves employers wondering what impact these laws have on their ability to control the workplace.

While employers may discipline employees who are under the influence of drugs at the workplace during working hours, it is not as clear for off-the-clock drug use. Employers are asking whether they can discipline or terminate employees for legal, off-the-clock drug use. In recent years, the answer to that question has gone from “Yes!” to “Most often, yes” to “Well, maybe.” And the reasons for the changes are new state laws and court decisions seeking to provide some workplace protection for employees engaging in legal, off-the-clock use. Thus, being familiar with your governing state laws is essential.

  1. Does My Employee With Drug Addiction Have a Legal Disability? Maybe – it depends on whether the employee is currently using drugs. An employee who is actively or currently using drugs is not protected under the ADA. However, a recovering drug addict may have a legal disability under the ADA. If the employee is covered by the ADA, they are entitled to the same protections as your other disabled employees. In such situations, common accommodations are time off to attend meetings or counseling for the drug addiction.

Adam Bartrom is a partner in the Fort Wayne office of Barnes & Thornburg.