Medical Marijuana and the Construction Industry: Effective Drug Testing Policy and


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 Niantic Operating Co., LLC, a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user. An Arizona federal court agreed with the Connecticut court’s reasoning in Whitmire v. Wal-Mart Stores, Inc. Similarly, Oklahoma law prohibits contractors from discriminating or punishing an employee based on the employee’s status as a medical marijuana card holder or a positive drug test for marijuana or its components unless the employer would lose a benefit under federal law or regulations. Although these statutes do not prohibit contractors from disciplining employees who consume marijuana, or are under its influence, while on the jobsite, it may be difficult to determine when an employee is actually impaired and a drug test is warranted. This difficulty…



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