Marijuana is different than other drugs because the legality of its use varies by state. The 2020 election increased the number of states that legalized marijuana for medical or recreational use. It is now legal for recreational use in 15 states, two territories, and in Washington, D.C. Medical marijuana is now legal in 34 states and two territories.
This puts employers in a precarious position when tasked with maintaining compliance, the productivity of their workplaces, and more importantly, the safety of their employees, clients, and data. It can be quite challenging (not to mention confusing) for employers and HR professionals to manage the legality of these changes. What do you do if you run a business in a state that just legalized marijuana for medical or recreational use? Here are some best practices.
Marijuana is Legal and Illegal in Most States
Even though legislation regarding the legalization of medical and recreational marijuana use is currently being debated at the federal level, it remains an illegal drug according to the Controlled Substances Act. Federal requirements for drug-free workplaces still require that employees test negative for marijuana along with other illegal drugs.
Marijuana Impairment and Testing
Recreational marijuana is often compared to alcohol, but for employers, there is a key difference. Assessing marijuana impairment is much more complicated. At this point, it is quite difficult to assess a marijuana user’s level of impairment.
In terms of testing, oral fluid tests are currently the best practice, as it can detect recent marijuana use, exclude long-past use, and do so with a noninvasive test. Urine testing is unable to discern recent use from weeks earlier and often cannot capture use that happened within the last few hours. None of the tests, however, can determine a user’s level of impairment. That still remains a judgment call.
Until marijuana production, manufacturing, labeling, and distribution become standardized, use, safety, and wellness will continue to be a foggy area.
States That Permit Discipline for a Positive Marijuana Test
Most state marijuana laws either specifically permit employers to restrict marijuana use by employees or do not mention employers or the workplace at all. When a state marijuana law does not mention employers at all, the status quo remains in place, which is that employers may test for and discipline for marijuana use in the same manner as other illegal drugs (subject to the requirements of state drug testing laws).
Best Practices for Employers
Because marijuana use is a gray area of the law, it is important that employers communicate their marijuana policies clearly to employees. If marijuana is legal in your state, your employees may believe that they are free to use it without consequence. Employers should take care to inform employees of their drug use policy and the consequences of violating that policy.
Employers’ policies can only restrict marijuana use to the extent permitted by law so it is a good idea for employers to review their drug and alcohol policies with their legal counsel to ensure compliance with new state laws. In all states and industries, however, employer policies can prohibit employee marijuana use or impairment during work hours and while on company property as similarly done with alcohol use and impairment.
All employers can continue to test for marijuana, using a testing method that indicates recent use as opposed to historical use. In states where medical marijuana users receive protection from workplace discipline, workplace policies should require employees to verify their medical marijuana authorization to a Medical Review Officer. Employers and managers should be trained to identify marijuana impairment and know what to do when an employee is suspected of impairment on the job. Policies should prohibit any marijuana use by employees in safety-sensitive positions.
Additionally, in states where medical marijuana is legal, employers should work with their legal counsel and human resources to develop a policy for employees who request accommodation of medical marijuana use for a disability, taking care to comply with state disability discrimination laws.
Premier HR Solutions is an Austin based HR consulting company providing human resource services to emerging companies. Whether your company employs 5 people or 500, we can provide additional human resource assistance to help you grow or manage your business. If you have any questions about this topic or any other HR or recruiting-related questions, we are happy to help. Click on the link below to schedule a free consultation with one of our HR Advisors.