Medical Marijuana and the Construction Industry: Effective Drug Testing Policy and Compliance – JD Supra

Last year, Mississippians voted overwhelmingly to approve Initiative 65 and legalize medical marijuana. While the fate of the initiative is currently in limbo — until the Mississippi Supreme Court decides its fate — it seems clear that a Mississippi medical marijuana program is inevitable, based on recent legislative activity.

Despite these developments in Mississippi, marijuana is still considered an illegal drug under federal law — at least for the time being. This tension between federal and state law presents new challenges for contractors (and other employers), particularly those working in multiple states and jurisdictions. Contractors must balance complying with divergent federal and state laws, maintaining a safe work environment, and protecting employees’ rights. Although difficult at times, there are steps contractors can take to help navigate this legal minefield successfully.

Maintain a Safe Workplace and Jobsite

The Occupational Safety and Health Act’s general duty clause requires contractors to maintain a safe jobsite and work environment “free from recognized hazards that are . . . likely to cause death or serious physical harm.” Construction sites already contain a number of hazards that can result in personal injury, and an employee’s impairment due to drugs or alcohol can seriously increase the danger to persons and property. Accordingly, most contractors have zero-tolerance policies that ban the use of alcohol and illegal substances. Although zero-tolerance policies typically permit an employee to avoid adverse employment actions by disclosing the use of prescription drugs prior to a positive drug test, these policies otherwise prohibit the off-site consumption of alcohol or drugs that will result in a positive test. The legalization of medical marijuana in a number of states, such as Mississippi, has made maintaining a zero-tolerance policy more difficult.

In some states, contractors must accommodate an employee’s use of medical marijuana. For example, in Noffsinger v. SSC

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