The federal government officially declared marijuana illegal in 1937. Less than 40 years later, states began to decriminalize the drug. State changes in the law happened slowly at first, usually by allowing medical cannabis. But since Colorado and Washington made recreational marijuana use and cultivation legal in 2012, other states quickly followed suit. Today, marijuana is legal to some extent in twenty-nine states and in Washington DC. The laws aren’t standard, however, and they have changed quickly, resulting in a lot of confusion for everyone, especially employers.
With planning and communication, you can easily update your workplace policies to accommodate marijuana. Here are five ways to do so.
- Review State Laws
Federal laws regarding marijuana haven’t changed: it’s still illegal and even medical marijuana isn’t covered by the ACA. However, this doesn’t mean that your company can simply disregard state laws. For example, in Callaghan v. Darlington Fabrics, the Rhode Island Supreme Court found that refusing to hire an applicant based on her use of medicinal marijuana was a violation of Rhode Island state laws protecting the use of medical marijuana. In another case, Barbuto v. Advantage Sales and Marketing, the Massachusetts Supreme Court found that in firing an employee who used medicinal marijuana without first evaluating her request, the company had effectively denied a handicapped employee reasonable accommodation under state law.
It’s important to note that in both these cases, the employer did not violate federal law. That being said, employers who don’t follow state laws regarding marijuana risk serious legal repercussions.
Employers need to pay attention to changes in marijuana laws. For example, recreational marijuana use was made legal in Maine in 2016. In January of 2018, it became illegal for Maine employers to discriminate against current and prospective employees for marijuana use. This is a major change in state policy and one that is already up for consideration in other states, both in New England and beyond.
- Review Workplace Standards And Adjust As Necessary
Most companies have rules and standards regarding a drug-free workplace. Although the laws concerning marijuana use have changed, there is no state that prohibits employers forbidding the use of marijuana on the premises or while performing work duties. A good rule of thumb is to treat recreational marijuana the same way that you treat alcohol consumption. There’s a time and place to have a beer or a glass of wine, but it’s not in the employee break room.
If your company uses drug tests, it’s a simple matter to ask that the testing company exclude marijuana. In fact, if you live in a state like Massachusetts which now allows recreational marijuana, the company performing your testing may have already excluded it. But don’t operate on that assumption. Be prepared to find out.
- Convey Standards Clearly To All Employees And Applicants
As with any other change to policy, it’s important to make sure your employees are aware of changes to policies and standards. You should work with your HR department to properly update your employee handbook as well as employment applications and any workplace signage to effectively convey the changes to everyone.
- Train Your Managers To Respond To Medical Marijuana Appropriately
While the ADA protects individuals with disabilities from discrimination and requires employers to make reasonable accommodations, it does not protect employees who use medicinal marijuana. However, many states do provide legal protection for medicinal marijuana users. It is important that all your employees feel like they’re being treated fairly and equally.
It’s natural for an employee to first turn to his or her supervisor after finding out they may need a leave of absence or an accommodation. However, not every manager or supervisor will respond appropriately, especially when it comes to medicinal marijuana. Make sure that your managers and supervisors know that if and when an employee discloses the need for medical marijuana, they should be treated the same as any other employee who has disclosed a serious health condition. A sensitive response now can prevent HR issues later.
- Don’t Be Afraid To Seek Professional Guidance
The conflicts between federal law and state law regarding marijuana are confusing for everyone. Don’t be afraid to reach out for HR advice on how to craft policy and for the most effective way to communicate new policy to your employees and managers. You probably have an HR expert in house, but you can also leverage your relationship with your HRM and legal counsel for further direction.
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