As of 2018, marijuana is legal in 9 states – Oregon, California, Washington, Nevada, Alaska, Colorado, Vermont, Massachusetts, and Maine – and in Washington DC. Medical Marijuana is legal in 29 states. This means that marijuana is legal to some extent in well over half of the United States.
It’s no surprise that employment laws have been enacted to protect the off-site consumption of medical marijuana in 12 states, as well as in Washington DC. One state, Maine, has made it illegal to fire employees for recreational use of marijuana away from work, with other states weighing similar laws. According to HireRight, over 2/3 of employers have workplace policies on marijuana use. Of course, using marijuana, either as medication or for recreation is still illegal under Federal law. Because of this, you may think that you don’t have to develop such a policy, but given the rate of change, it’s still wise to have one in place. Here are some reasons why.
Increasingly, marijuana has been recognized as being useful for medical care. It’s used to treat diseases such as cancer and multiple sclerosis. It’s also used to treat nausea, pain, and anxiety that result from the treatment of other diseases and medical conditions. As marijuana becomes more common in medicine, employers are needing to make adjustments to their drug policies. Although marijuana is still illegal under federal law, courts are increasingly finding that employers need to accommodate workers who can prove that they have a medical need for marijuana.
Of course, accommodation doesn’t mean that employers need to tolerate drug use in the workplace. Increasingly, HR best practices include updating your drug policy to account for the fact that someone may use medicinal marijuana away from the office environment. If you keep the focus on requiring that employees not be impaired while at work or while performing work for the company, you can protect your company from inadvertently violating any laws regarding lawful use of marijuana.
Consistent Employee Policy
The changes in state marijuana laws have resulted in a patchwork of regulations and potential legal difficulties for employers. Whether or not your headquarters is in a state that has not yet decriminalized marijuana but you have employees and business units in states that allow medicinal or recreational marijuana, your company may find itself in the unenviable position of having two (or more) sets of laws and legal precedence to contend with. Common sense – along with any HR professional – will tell you that it’s a bad idea to have multiple employee policies for the same (or similar) HR issues.
Once again, by placing the emphasis on forbidding employees to work or otherwise conduct business while impaired, you can provide a clear set of guidance across your company and protect yourself from violating any permissive use laws. And by keeping the emphasis on marijuana use in the workplace (rather than recreational use away from work) you will be prepared for any changes in your state’s drug laws.
Adjusting Your Marijuana Policy Can Help Recruiting
Let’s face it: we live in a time of low unemployment and high marijuana usage. In fact, according to a recent Marist poll, there are nearly as many current marijuana users (55 million) as there are cigarette smokers.
Employment drug tests that include marijuana are increasingly seen as a hindrance to recruiting rather than as a good strategy to guarantee a drug-free workplace. This is particularly true in industries that don’t require federal oversight, such as most warehouse work. Employers that don’t require work with heavy equipment, such as hotels, are also increasingly unlikely to include marijuana in drug screening.
Employers who have decided not to include marijuana are increasingly going public. AutoNation, which operates car dealerships in 17 states, announced that they had stopped including marijuana in pre-employment tests in 2017. Other employers have chosen to simply stop considering marijuana use as a barrier to employment, particularly employers in New Hampshire, which shares a border with both Massachusetts and Maine, both states where recreational marijuana usage is legal.
Given the increasingly tight labor market and permissive attitude toward marijuana use, it shouldn’t be surprising that employers have updated their drug testing policies. Creating or updating employee policy is one of the best Human Resources tools a company can have.
For more information on how Commonwealth Payroll & HR can work with you on your strategic human resources planning, call us today at 877-245-1159