Marijuana remains classified as a Schedule 1 controlled substance in the United States. Until more recent years, marijuana was illegal in all 50 states. With current activism and trends in legalization of recreational use of marijuana, there is a push to remove marijuana from the federal government’s Schedule 1 classification. Reclassifying marijuana could create new impacts for administrative investigations and employee discipline ranging from issues of prescription marijuana use among employees to recreational use of this substance that has long been illegal.
Marijuana being removed from the Schedule 1 category of controlled substances could first lead to more wide-spread medical legalization in states that were not prepared to recreational legalization. Law enforcement administrations would have to establish or adjust policies to accommodate legal prescription use and even legal recreational use off-duty in states where such laws are passed. This will be necessary to provide employees with fair notice of what is expected and what is prohibited. These policies would not be entirely new territory, but could have a basis in already common fit-for-duty policies and policies related to off-duty alcohol use. However, the next challenge
would be to address situations where an employee is investigated for being impaired with their marijuana prescription.
A court ruling in Rose V. Berry Plastics Corp. (2018) is a preview of how courts may examine workplace marijuana and impairment determination issues. In this case, the appeals court held that, “The presence of an intoxicating substance in the blood does not automatically mean that person is intoxicated.” The court went on to rule that it was necessary to determine a causal connection between an accident (in the workplace) and a state of intoxication. While the Rose case dealt specifically with a workplace injury and worker’s compensation claim, the analysis must be considered in handling employees legally using marijuana. Administrators would not be able to deem an employee was intoxicated based solely on the presence of marijuana in one’s system. Administrative investigators would have to conduct more thorough investigations than simply administering a drug test. A quality administrative investigation to determine if an employee was impaired would have to be conducted to include statements of those involved in a particular incident and seeking any other forms of evidence.
In states where marijuana was recreationally legal for use, law enforcement administrators would need to be prepared to treat the substance like they treat alcohol. Administrators must give policies or issue memorandums to give fair notice of how legal recreational use would be viewed and handled within the agency. Administrations and policy makers can look north to Canada for some idea of how these policies may take shape. After marijuana was legalized in Canada in 2018, Canadian law enforcement had to address off-duty marijuana use by police officers.
While drug testing is an important early step in an impairment investigation, administrative investigators must follow applicable policies regarding when they can and cannot order an individual to test. Many places require a reasonable suspicion standard for ordering a drug test outside of randomized employee drug testing. In cases where an employee’s impairment may be the subject of a criminal investigation, administrative investigators must also realize that compelled drug tests are nontestimonial evidence, and therefore drug test results do not have the same protections as a compelled statements.
Canadian police agencies in Ottawa, Montreal, and Vancouver have all adopted marijuana policies that allow for legal use as long as the officer is fit for duty when it is time for work. Other agencies, such as the Toronto Police and Royal Canadian Mounted Police, started by implementing policies that an officer could not consume marijuana within 28 days of reporting for duty. One Toronto police spokesperson indicated their decision was based on research into how long THC remains in the body and varying levels of impact it can have on thinking and decision-making.
Law enforcement administrations must be prepared for change and impacts of the federal government removing marijuana as a Schedule 1 controlled substance. If (more likely when) that change occurs, it is probable that even more states will relax laws targeting marijuana use. Policies and memorandums must be issued to provide clear guidance and fair notice to employees whether it be for medical marijuana use or legal recreational use. Some agencies in Canada have chosen to treat marijuana like alcohol and expect only that an employee be fit for duty when reporting for duty. Others have effectively banned marijuana use for almost a month prior to reporting for duty.
With any of these impacts, in a situation involving possible discipline and termination, law enforcement administrations must uphold an employee’s due process rights. While the employer/government obviously has an interest in efficiently disciplining/dismissing unsuitable
employees (impaired employees), that must still be weighed against the employee’s due process rights.