Review the line below taken from the employment webpage of a medium-sized organization: Applicants that have used marijuana within 18 months from the date of their application submission will not be eligible for hire.

It seems like pretty standard fare, doesn’t it? But considering all the states that have legalized marijuana use for medical purposes and sometimes also for recreational purposes, does that kind of blanket prohibition in employment pass legal muster any longer?

It might surprise you to know that the rule cited above – which makes anyone who has used marijuana for any reason ineligible for employment – is the policy of the Colorado Springs Police Department. Of the more than 20 states that have some form of legal marijuana use, Colorado is one of the most lenient. Not only is medical use legal by state law, so is recreational use.

Update and align policies

Employers in states that have legalized some category of marijuana use need to review and update their drug and alcohol policies, and employers in other states would be wise to keep an eye on the status of legalization initiatives. Organizations that have employees in multiple states with marijuana laws that are at odds with each other will have a number of legal and policy implementation hurdles to clear.

A few points need to be made at the outset: Employers are never required to permit the use of drugs at work, nor must they tolerate employees who show up to the job under the influence. Once they are at work, employees become the responsibility of their employers and anything that impacts job performance or workplace safety is a legitimate area of concern and control for employers.

Further, there are fundamental conflicts between states that have legalized marijuana and federal law, which still classifies it as a Schedule I drug under the Controlled Substances Act. Generally, the Obama administration is allowing states and other entities to go their own way without fear of a showdown with the federal government. For example, the president has said his administration will not prosecute banks that do business with marijuana sellers, although to date, few banks have allowed marijuana sellers to open business accounts.

However, even given this zany quilt of federal and state laws, there are some guidelines to follow when crafting drug and alcohol policies. There are also some points that should be reinforced with all levels of management and be included with training programs for the enforcement of drug and alcohol policies.

Address the issue

As you begin the process of reviewing your policy, be certain that you are up-to-date on your state law as well as case law. Because this is a fairly new legal area, we can expect some significant decisions to be issued in the near term. Also, understand your status in relationship to federal drug law. For example, if any of your employees are involved in transportation, other public safety positions, or you do business with the federal government, federal drug and alcohol rules may still apply.

Once you understand the governing laws, be certain that your policy addresses marijuana directly. Assuming that that general language concerning other drugs or alcohol is sufficient to deal with the potential problems caused by marijuana consumption can be a mistake. Further, your employees and those who must enforce the policy deserve to have clarity when dealing with marijuana use, including its use outside of the workplace.

There is both medicinal and recreation use to wrestle with. States that have legalized the medicinal use of marijuana handle employer accommodation differently. Some flatly prohibit employment discrimination on the basis of medical use, while others give employers discretion. Because the federal government still classifies marijuana as a Class I drug, its medical use is not covered by the Americans with Disabilities Act. Be sure that your policy delineates your organization’s stance on both marijuana consumption at work and outside of work.

Drug testing

Your policy needs to clearly define how, when, and under what circumstances drug testing is conducted. Random drug testing is a controversial area, although it is legal in many states. In cases of observed and documented impairment, drug or alcohol testing is certainly warranted. But central to this is the ability of employees, especially managers, to recognize impairment. It’s smart to make that an element of ongoing training.

In addition to this, a unique problem arises with marijuana: it shows up in drug tests long after the period of intoxication is over. Regular users can test positive for weeks after they have stopped using marijuana. This creates a significant problem when drafting your policy. What will trigger termination, mandatory rehab, or disciplinary action? Any detectable amount?

Angela Matherly, senior director of risk management Snyder’s-Lance in Charlotte, North Carolina, noted that a marijuana user “can smoke all weekend and report to work sober on Monday, but if we pull you for a random drug test, you’re going to show positive.”

Be sure you understand state law governing workplace drug testing and that everyone involved in your drug-testing regimen understands how long traces of marijuana can persist among users. Also, it’s imperative that your testing policy is conducted consistently.

Court cases and costs

Employers have fared well in court cases. Courts have so far generally ruled in favor of organizations who wish to maintain a “drug-free” workplace. Even in cases where the medicinal use of marijuana has clashed with company policy, courts have sided with the companies. In one case against Walmart, a cancer patient using medicinal marijuana lost his case and the decision was upheld on appeal. However, even though the employers are likely to win, suits are still being filed and waging a defense can be costly.

In a similar way, medical marijuana may eventually have an impact on the cost of workers compensation insurance. Although there have been no known successful workers comp claims involving medical marijuana, there is a steady increase in the number of claims being filed. That area, like employment, is one business leaders will want to watch carefully.

Finally, as employers and marijuana users are both currently dealing with a good deal of confusion and much uncertainty, lawmakers at all levels in coming years will be busy attempting to eliminate the contradictions and provide both clarity and direction.

There will be many interested onlookers.