Cannabis in the Workplace

Employer Concerns

As marijuana laws are changing rapidly across the United States, many employers are becoming more and more confused. Because of this, many employers have expressed concerns that they might have to prove an employee was under the influence of cannabis when an employee fails a drug test. This has raised the question as to whether employers can conduct random drug tests. Many employers maintain zero-tolerance policies on the use of drugs to include marijuana both in and out of the workplace. They of course do not want their employees coming to work intoxicated.

The biggest concern for employers is workplace safety. The problem for employers is that it is very difficult for them to determine if a positive drug test for marijuana is the result of use during work versus nonwork hours. Some employers are maintaining tight restrictions, even for off-the-clock cannabis consumption. Others are easing their policies and only disciplining employees for failed drug tests when it is obvious that their productivity has been undesirably impacted. THC, the chemical that produces marijuana’s effects, can likely remain in the body for up to several weeks. This creates a real problem because a positive result does not necessarily indicate current, on-the-job impairment, nor does it give you an indication of how often it is used.

Drug Policies in the Workplace

The rules are getting more and more difficult to navigate as more states continue to add employment protections. Despite employer friendly amendments, drug policies in the workplace must be both reasonable and nondiscriminatory. Employers may need to revise their drug testing and accommodation polices. However, there are no state laws that require an employer to tolerate on the job cannabis use or intoxication.

Since there are so many new developments with drug testing and marijuana laws, it has become trickier for employers to keep up. Employers are entitled to provide detailed policies related to marijuana use in the workplace, including a drug-free workplace and zero-tolerance policies. Since marijuana remains illegal under federal law, employers can prohibit marijuana at work. Employees can be disciplined, and even terminated, for coming to work under the influence, possessing marijuana on company premises, or using marijuana while at work – even in states where marijuana is legal. In most states, employers also have the right to test employees for drug use and can discipline or terminate employees for violation of the drug-free workplace policy.

Before implementing a zero-tolerance policy, make sure your state does not specifically protect medical marijuana users or prevent employers from disciplining workers for legal off-duty conduct. Otherwise, drug-free workplace policies are essential to help protect your business and manage employees in the wake of legalized marijuana.

Employment Discrimination & Accommodation

An employer needs to be cognizant of how each applicable statute impacts the workplace. There are many state medical marijuana laws that prohibit employment discrimination against applicants and employees who use medical marijuana. The trends in the future will more than likely protect the rights of medical marijuana users in the workplace. The list of states with recreational marijuana laws is growing, but these laws do not contain employment protections for applicants and employees.

With a shortage of qualified workers and the fact that marijuana use is legal in some states, it has become harder to make the argument for marijuana screening or for taking adverse action based on positive tests. Employers with mandatory drug testing policies need to ensure they follow specific state laws restricting disciplinary action based on positive test results. Additionally, employers are prohibited from administering drug tests as a form of discipline or for retaliatory purposes. Companies are generally allowed to require drug testing as a condition of employment and can deny employment based on positive test results. However, some states limit pre-employment drug testing for medical marijuana users, and other states have anti-discrimination laws for pre-employment drug test results. Some employers are lessening their drug testing policies or removing marijuana from the list of drugs tested for. However, this may not be a viable option for companies with employees working in safety-sensitive positions, or companies with insurance policies or government contracts that specifically require employee drug testing.

Currently, employers do not need to accommodate medical marijuana in the workplace. However, this may change sooner than later. Several states have recently indicated that accommodating an employee’s medical marijuana use may be applicable in some circumstances.

Employee Privacy

An employer is not permitted to inquire about an employee’s habits or interest in using cannabis unless they recognize impairment. If an employee is demonstrating signs of impairment, the employer will want to investigate in a reasonable and professional manner with another supervisor or manager present to serve as a witness. If the employer has a reason to be concerned, the employer can inquire, and it does not violate the employee’s privacy rights.

The following are examples of reasonable cause.

• Strong Odor
• Racing or Fast Heart Rate
• Overly Sleepy or Drowsy
• Lack of Coordination
• Unusually Talkative
• Anxiety, Unusual Fear, or Panic
• Increased Appetite
• Slurred or Slow Speech
• Distracted Mid-Thought, Inability to Verbalize Thoughts
• Unstable, Fidgety, or Dizzy
• Argumentative, Agitated, or Irritable

Decriminalization & Legalization of Marijuana

The decriminalization of marijuana and legalization of it are two very different matters. Decriminalization means that the legal consequences for possession of small amounts of cannabis is not severe and someone caught with a small amount will not face prosecution, jail time, or a receive a criminal record. The legalization of recreational marijuana means that adults can legally use, possess, and even grow their own marijuana for personal use.

The House recently passed legislation that would decriminalize the substance and expunge nonviolent marijuana related convictions. Although illegal federally, the number of states that permit its use is growing rapidly. The map below shows how many states, including DC, have marijuana laws in place that permit its use.

In the coming months and years, it will be important for employers to look out for case law, because courts will continue to understand and interpret employee protections under the medical marijuana statutes.

Best Practices to Manage Your Workforce

The conflict between state and federal law is not expected to be resolved anytime soon. Because of this, employers should follow several best practices to manage employees where marijuana has been legalized.

Employers should create policies that balance legal compliance with the specific needs of the business. Until the conflict between state and federal law is resolved, this includes:

• Staying up to date with new and changing marijuana laws.
• Establishing specific requirements for drug testing and medical marijuana in each state in which your company has employees.
• Developing state-compliant workplace drug policies that are appropriate for your business.
• Substantiating your drug testing policies in writing, distribute to employees, and apply the policies consistently.
• Considering the removal of strict drug testing practices in favor of reasonable suspicion drug testing.
• Determining if you will test applicants for marijuana use or not.
• Contacting legal counsel if any specific concerns or incidents arise within your workforce.

Understanding the laws regarding marijuana will help you protect both your business and your employees. If an employer outlines clear policy, this will ensure that their organization is ready to keep up with the ever-changing marijuana laws.

To learn more about our HR Advisor services and how we can help your organization, contact hradvisor@payrollnetwork.com.