Marijuana is illegal under federal law and, until very recently, this was the end of the discussion. However, marijuana has become decriminalized state by state, making the status of users in the workplace confusing and creating a challenge for HR professionals across the country.
On November 16, 2018, Commonwealth Payroll & HR hosted a webinar discussing these changes and the various workplace approaches to them. The webinar was posted by Sara Borsten, PHR. The webinar was recorded and is available to view until May 15, 2019.
Background
It’s important to note at the outset that marijuana cultivation, possession, and sale are still illegal. While state laws have decriminalized the consumption of marijuana, states cannot prevent the federal government from enforcing federal law.
Employment and Recreational Use
Recreational marijuana use is now legal in 10 states and in Washington, DC. It’s legal in Alaska, Washington (state), Oregon, California, Nevada, Colorado, Michigan, Massachusetts, Maine, and Vermont. In some states that allow legal recreational use (such as Maine), it’s illegal to base employment decisions on marijuana use away from the office. This has prompted other employers in states with legal recreational use to stop, or at least re-consider, pre-employment testing for marijuana use.
Employment and Medicinal Use
Marijuana is legal for medicinal use, but not recreational use, in over twenty states. However, there are huge variances in who is eligible to use medicinal marijuana legally. For example, West Virginia and a few other states only allow marijuana infused products to be used for medicinal purposes. Other states limit the use of medical marijuana to patients with certain illnesses. Because of the wide variance in laws, it’s believed that medicinal marijuana will be subject to lawsuits and further legislation. For the time being, however, it remains a thorny issue.
There are some states that have written protection into law for users of medicinal marijuana, explicitly making it illegal for employers to discriminate on this basis. The ADA does not require employers to provide reasonable accommodation for users of medicinal marijuana. That being said, HR experts suggest that employers in states that allow medicinal marijuana give all employees requesting an accommodation the same consideration.
Policy Considerations
The patchwork of state laws regarding marijuana have made for a challenging environment for employers. Because of this, the burden of interpreting the conflict between federal and state laws rests on the shoulders of employers. HR professionals are advised to work with employers to develop a marijuana policy and to clearly convey it to employees.
When formulating a marijuana policy, employers should consider their company culture, as well as industry norms, job duties and safety issues. For instance, the recreational use of marijuana may be less acceptable in a medical setting or a conservative accounting firm than in a graphic design studio.
Your marijuana policy can prohibit the use of marijuana on the premises, even if your state allows for the recreational or medicinal use of marijuana. Employers aren’t obliged to compromise on safety when it comes to the use of medicinal marijuana any more than they would be for an employee who needs to use strong painkillers or other medicine with side effects that may impair the safe function of machinery or vehicles. In the case of medical marijuana, it’s wise for employers to follow the same reasonable accommodation procedure for all employees.
Increasingly, states have placed restrictions on pre-employment drug testing. At the same time, marijuana use has become increasingly common. At a time of low unemployment, employers are choosing to simply stop testing for marijuana. Regardless of how your company chooses to approach marijuana use among employees, make sure your testing procedures are consistent. If your company chooses to not perform pre-employment tests for marijuana but does choose to include it in post-accident testing, make sure that your testing facility is aware of this. You should also have your policy spelled out clearly in any documentation provided to the applicant or employee prior to testing.
If your company uses drug testing, it’s important that you have a contingency plan in place for appeals. Work with your test provider to discuss what happens when an employee has a positive test result. How are the results confirmed? Is there a medical review? Can the results be challenged or appealed? Once you have these questions answered, you should work with your staff to determine the next steps.
After an applicant or employee has tested positive for marijuana, how should the issue be addressed? Your company needs to spell out prohibited behavior very clearly and make sure that it’s been explained to everyone involved.
There are companies for which a drug policy has already been set up. Any organization that gets a federal contract over $100,000 is subject to the Drug Free Workplace Act and must discourage drug use among employees, whether recreational or medicinal, regardless of state law. There are other industries that are subject to similar restrictive laws. Additionally, drug testing is a mandatory subject of collective bargaining. If your company has any unionized employees, you should review your Collective Bargaining Agreement prior to making any changes to your company’s drug policy.
Whatever approach your company takes to the use of marijuana, it’s important to work with your company’s HR administration to make sure that the policy is conveyed clearly and applied consistently throughout your company. Be sure to review your employment application and to train your managers in how to answer questions about your company’s policy on drug use.
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.
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