Employer, Fed restrictions could limit the ability of some to use marijuana at any time

(Editor's note: This is the fourth in a series about the recent legalization of marijuana in Montana.)

With recreational marijuana use now legal, the regulations on its use make it much more comparable to alcohol. Every adult over 21 is welcome to use the formally prohibited substances but there are limitations to the freedom. It will, for example, remain illegal to drive under the influence of marijuana.

There are also likely limitations to the leeway one can take when it comes to the workplace. Ballot Initiative 190, the initiative that legalized recreational marijuana, lays out the limitations of the law with respect to employment in Section 16-2. Under the outlined limitations, marijuana use is treated much like alcohol, in that employers can take disciplinary actions against employees who violate workplace policy or who are suspected of working while under the influence. The law does not however generally allow employers to prohibit their employees from using marijuana on their own time and on their own property.

But that is not true for every job; depending on where you work, limitations can be much more strict. Due to marijuana still being illegal at the federal level, employers whose companies are under federal regulation or regularly receive federal funding must still treat marijuana as an illicit substance. This means disciplinary action can still be taken against employees who use marijuana even outside of their job and if it is detected in a drug test, it will still result in a failed test.

These federal limitations apply to companies such as Montana-Dakota Utilities. According to MDU spokesman Mark Hanson, the company will still be following federal guidelines on the issue, pointing to a statement made by the U.S. Department of Transportation. The USDOT issued a clear warning that despite states voting to legalize marijuana at the state level, certain "safety-sensitive" transportation employees will still have to abide by longstanding regulations. This includes both recreational and medical marijuana.

"We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation's regulated drug testing program. The Department of Transportation's Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason," the DOT said.

This is also the stance being taken by pipeline and oil companies. According to Bret Ketchem, director of safety for WBI Energy, which operates a federally regulated interstate natural gas transmission pipeline, their company policy will continue to follow federal guidelines as well. WBI, Like MDU, is overseen by the DOT and the Pipeline and Hazardous Materials Safety Administration (PHMSA). Under federal guidelines, companies that conduct work where safety is a high priority have to randomly test 50% of their employees every year.

To help inform affected employees on the differences between state and federal law, these companies will have to provide training. Ketchem said this is something that WBI has already had to deal with in other states it operates in that have legalized marijuana for some time now, adding that similar training was needed when some states passed medical marijuana laws.

"We've done it before in other states that have legalized (marijuana), starting off with Colorado. We talked about it there, we talked about it in both North Dakota and Montana when they went to medical marijuana. We discussed that with (our employees) and said that's still a Schedule I drug we have to randomly test for," he said.

Ketchem also signaled that it is likely that even if marijuana use became widely legal, companies like WBI would still have restrictions on its use. He pointed to Canada for an example noting that following the country's move to legalize marijuana use for all adults in 2018, energy companies in the nation implemented "fit for duty" rules. These are guidelines that are meant to ensure workers are able to conduct their work safely.

"Safety is the key aspect here. That's how the government looks at it, that's how we look at it, it doesn't matter if it's marijuana or alcohol, they have to be fit for duty," Ketchem said.

Aside from pipeline and energy companies, other places that receive federal funding will be subject to federal regulations as well. This includes state government employees, university and college campuses and hospitals. This can also apply to rental properties if the owner of the property receives federal funding.

Reach Hunter Herbaugh at [email protected].