As more states legalize the use of marijuana, a fair question many cleaning contractors are asking is how this impacts their business operations.
If yours is a drug-free workplace, can you not hire someone because they failed a drug test, and will state courts protect you if there is a lawsuit? What if current employees are given drug tests and fail? Once again, is the law on your side if you fire these individuals?
Courts around the country are just starting to grapple with these situations. Further, according to a report in Forbes magazine, U.S. marijuana sales are expected to top $21 billion in 2021. This is up from $6.5 billion in 2016. Given the increasing acceptance of the drug, this issue is likely to become even bigger in years to come.
But wait, there’s more. Complicating matters is the fact that on the federal level, marijuana remains illegal, no matter if your state has legalized marijuana use or not.
The federal government hires cleaning contractors as well as in-house cleaning staff to maintain their properties around the world. If your company has been hired to clean a federal facility, then your team must understand that it is “unlawful to manufacture, distribute, dispense, possess, or use a controlled substance” in a federal facility. Further, drug tests are encouraged. A violation of this rule could result in termination of the contract.*
But how about on the state level? In Rhode Island, which allows possession of marijuana for medicinal purposes, an employer refused to hire a woman because she stated on her application that she does use marijuana for medical purposes. She sued the company, and she won her case.
In another court case, this one in Massachusetts, an employee failed a mandatory drug test and was fired. The employer was sued, and once again, the court sided with the employee, but not explicitly because she failed the drug test. Instead, the court ruled that the employer should have taken more steps to accommodate the employee and viewed her termination as a form of discrimination. The medical use of cannabis is legal in Massachusetts.
Although these two cases were decided in favor of the employees, that is not necessarily how things will work out around the country where marijuana is legal for medicinal or recreational purposes. Many of these states still allow employers to have mandatory drug tests before someone can be hired, and, if the employer decides not to hire someone because they use marijuana, the court has come down on their side.
Well, it does not look like we cleared things up very much. So how should cleaning contractors handle this murky situation? Their decision should be based on the facilities they clean. If a workplace, such as a federal facility, is required to be drug-free, then custodial workers cleaning those facilities must adhere to that rule.
The same is true of commercial facilities. If a building owner or manager notifies contractors that this is a drug-free environment, that must be your policy as well.
However, the trend does seem to be moving in the direction of allowing employees to use marijuana when not at work. This means if an employee fails a drug test because of marijuana but does not use the drug at the worksite, the employer – and the courts – will likely look the other way.
Ron Segura is president of Segura Associates. His company works with building managers as well as large and small contractors, helping them build their brands and streamline business operations. This helps reduce costs and allows them to operate more profitably. He can be reached at: firstname.lastname@example.org