Despite being listed as a Schedule 1 controlled substance under the federal Controlled Substances Act (“CSA”), marijuana has been legalized or de-criminalized in twenty-five states and the District of Columbia. In five states, such as Colorado, marijuana is legal for recreational purposes – adults are permitted to possess marijuana for essentially any and all personal purposes. In other states, marijuana use is limited to medical purposes – children and adults may ingest some forms of marijuana for enumerated medical purposes so long as they maintain valid prescriptions. The conflict between federal law and state law has created a tricky landscape for employers to navigate.
On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a revised proposal to expand data collection through its Employer Information Report (“EEO-1”). Through EEO-1 reports, the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) have been able to identify possible discriminatory practices and conduct pay discrimination investigations through the race, gender, ethnicity, sex, and job category pay data collected from employers across the country.
Let’s say that one of your employees gets in an accident at work while performing his or her usual job duties. The employee is injured, and you want to know whether to test the employee for intoxicants. After all, you have a substance use policy, and don’t want to face a lawsuit or administrative claim alleging that you are responsible for the accident. Can you require the employee to be tested for intoxication?