How Will Businesses Handle Legalized Marijuana in the Workplace?
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Human Resources is really up against an ill-defined wall. For decades, they have been able to test job applicants and employees for the presence of marijuana in their systems. With a firm drug policy in place, they could – somewhat officiously – discipline or fire you.
Marijuana is a controlled substance according to the FDA. The DEA, OSHA, and Workers’ Comp underwriters all supported firm and consistent testing and regulation. But, it’s all changed with the expanding legalization of medical cannabis and adult-use recreational marijuana. Now, the employer’s problem is how to handle marijuana testing and use during work hours.
The problem rolling into the future.
Writing for SHRM (Society for Human Resource Management), Joanne Deschenaux quoted attorneys Timothy P. Van Dyck and Nathaniel Nichols at Edward Wildman Palmer, “This uncertain regulatory scheme places employers in the delicate position of attempting to comply with divergent laws while maintaining order and safety in the workplace.”
So far, everyone seems to agree that an employer has responsibility for those employed on its property and under its authority, so the employer has the right to install and administer a Drug-Free Workplace Policy. Writing for North Bay Business Journal, Cynthia Sweeney points out, employers who do not have a well-documented cannabis policy could expose themselves to allegations of discrimination.
It has the right and duty to protect its interests and employee safety with policy and practice that has a bona fide connection with business purpose and health and safety. Still, state-by-state legalization has complicated the understanding of what is and isn’t bona fide.
Just as a business might prohibit use of alcohol during work hours or appearance for work under the influence of alcohol, it may have a firm and consistent zero-based policy on marijuana. One problem is how that will roll out for employers with employees in different states.
The North Bay Business Journal reports that in California, for example, "a federal district court in California reaffirmed that an employer ... maintains the right to discipline employees even where the marijuana use is recommended by a physician: 'It does not violate [California’s laws against workplace discrimination] to terminate an employee based on their use of marijuana, regardless of why they use it,' the ruling said."
The other problem occurs when the business is a federal contractor when the employer must abide by the Federal Drug-free Workplace Act (FDW). Absent a firm and consistent drug policy, the employer can lose eligibility for federal contracts.
Here’s the problem. It’s only right that a business pursues maximum productivity, and it’s only necessary that it protect all workers’ safety and rights. You can see where a best practice might accomplish all this for medical marijuana patients. How it can also respect or deal with the lifting of prohibitions against recreational use remains an open question.
All businesses run scared of the law. But, even the law has limits. The smallest businesses and small family businesses, for example, fall under the thresholds for some compliance issues. Federal contractors and state contractors face obligations that other companies do not.
Some employers see no problem with allowing marijuana use in the workplace. Businesses in creative businesses like gaming and app development. And, of course, an increasing number of businesses are directly involved with marijuana production, distribution, and sale.
Oregon has provided a partial solution to some medical marijuana cardholders. “The regulatory body governing Oregon’s recreational marijuana program created a regulation specifically allowing employees of a licensed marijuana facility, who are medical marijuana cardholders, to consume marijuana within the facility,” notes cannabis industry attorney Brad Blommer of Portland-based Green Light Law Group. “There are limitations, such as the employee must be alone, in a closed room not visible to others outside the room, and the employee may not smoke or vape or become intoxicated while on duty.”
“About 9.74 percent of Americans have gone to work under the influence of marijuana, according to a survey conducted by Survey Monkey for Mashable,” Mashable reported, adding that, “Prescription drug takers were much more common, with 28.28 percent of people saying they've gone to work after taking prescribed medication. However, about 7.28 percent say they took these drugs for recreational purposes, rather than medicinal purposes.”
Considering these numbers and the complexity created with the passage of decriminalization, you should design a policy with the help of your HR attorney. Federal law on use and possession of controlled substance offers no safe harbor, so a business housed in a state that has not decriminalized marijuana can stick with a Zero-Tolerance standard.
But, if your business is headquartered in or has employees in states that have legalized possession and use of medical marijuana and/or adult-use marijuana, you may need a policy with some flexibility:
- Define what policy means by “marijuana,” “cannabis,” “medical marijuana,” “recreational use,” “after hours,” or any other term used in the policy.
- Clarify what the business means by “under the influence.”
- Specify procedures and penalties.
- Require employees to self-disclose if they want accommodation under ADA.
- Protect employees who self-disclose medical problem from discrimination.
- Contract for testing that differentiates marijuana use from other drugs.
- Educate employees and managers in clinical issues relating to the nature of cannabis, its effects and their relationship to work, and the language of laws affecting drug use and abuse.
- Refer employees to resources for treatment of abuse of drugs.
- Include policy in recruiting materials and new hire onboarding.
- Remain consistent in practice and application of policy.
"We are not required by law to test our employees for cannabis, so we don't,” says Jesse Peters, CEO at Eco Firma Farms in Oregon. Peters is a founding member of both the Oregon Cannabis PAC and the Oregon Cannabis Association, a leading lobby group instrumental in the advancement of legalization in the state, as well as guiding cannabis reform in Washington, D.C. “Employers in states where there’s no precedent for cannabis testing may have the option of omitting it from their program” says Peters. While Eco Firma Farms prioritizes compliance with state and local regulations, maintaining a safe and sober workplace is paramount. “It comes down to how one views their employees—we firmly believe in the personal freedoms afforded every human. So long as their lifestyle choices don’t undermine policy, we respect an employee's right to utilize cannabis.”
Business owners and management should stay informed on changes in the law. They must work with HR lawyers to remain current with and ahead of the curve on legal issues as well as the challenge presented by use.
For example, employees do not have to smoke to use cannabis. They can imbibe or consume cannabis discreetly in edibles or vaping. And, if you have employees in more than one state, even those where use has been legalized, you need a policy that can juggle the variations in the law.
It is likely that Colorado and its courts will define the best practice over time. It is also likely that California will draw the most employee-favorable policies. And, employers contracted with organized labor will face even more challenges.'As a result, cannabis advocates must continue their good fight for clarity and continuity. Employers can generally take refuge in conservative policies and procedures.