Webinar: Cannabis & the Workplace

This sesssion was presented on May 19, 2022.

Presentation slides

 

With recreational and medical marijuana use legal in multiple states, employers are often left wondering what restrictions they can, and want, to have in the workplace. Changes in political and social attitudes complicate the issue as well. In this session, we’ll talk through the legal landscape for both recreational and medicinal use, including potential ADA issues.

Webinar Transcript:

Megan Lemire (00:05):

Hello everyone and thanks so much for joining me today. I’m excited to welcome you to our webinar, our training, cannabis and the workplace. My name is Megan. And before joining the team, I practiced employment litigation focusing on disability discrimination laws. And I love talking about the intersection of cannabis and HR, which brings up my first point. There are a lot of different names for cannabis, so I’m going to be using the word cannabis in our talk today for a variety of reasons, but just know that it means the same thing as some of the other terms that are out there like marijuana, weed, reefer, ganja, whatever people call it.

Megan Lemire (00:48):

A couple notes. We’ll email you the recording of this presentation and the PDF of the slides today or tomorrow. I’ll be holding a poll and hope you’ll participate. And you can chat questions in along the way throughout the presentation, using the Q&A box. And we will have a brief Q&A session at the end, and I’ll answer as many questions as I can. This is only a 30 minute presentation so if I run over for Q&A and you can’t stay, you’ll also get the Q&A portion in the recording.

Megan Lemire (01:23):

Here’s our agenda for today. First, I’ll provide some basic science about cannabis. Then we’ll get into the relevant federal laws. Then I’ll move on to state laws, which is really where employers need to be careful, starting off with the state cannabis specific laws, and then looking at other state laws to consider when dealing with cannabis. And I’ll end with some general policy considerations beyond the legal compliance framework. As I mentioned, I’ll have a couple minutes at the end for questions.

Megan Lemire (01:58):

Okay, so let’s start off with a quick rundown on the basics of this plant. Cannabis is part of the cannabis plant family. It’s historically been used for a variety of different reasons, so there’s recreational aka getting high, industrial which is usually the hemp variety and medicinal. Plants in the cannabis family have several unique compounds called cannabinoids. The main two are tetrahydrocannabinol, THC for short and cannabidiol, CBD for short. THC is the psychoactive ingredient that gives people that high or stoned effect.

Megan Lemire (02:40):

If you send your employees to get tested for cannabis, the test is screening for THC and interestingly THC can stay in a person system for up to 30 days, so a positive drug test result doesn’t necessarily prove that the person was currently under the influence when they got tested. It could be that they smoked last weekend or even a month ago, completely outside of work. In recent years, they have developed a spit test that can narrow the window to 24 hours, which is a lot better, but still, unless the employees working a 24 hour shift, a positive test result, isn’t going to be conclusive of on the job impairment, that may or may not make a difference to you depending on your circumstances. The other main compound in cannabis is CBD. CBD doesn’t have any psychoactive properties so its main function is really medicinal. CBD products are not supposed to have THC, but sometimes they still do because regulations just really spotting, so that means it’s possible that someone who uses a CBD product could actually test positive THC on a drug test.

Megan Lemire (04:02):

All right, with that plant science down, let’s get into the laws and I’ve got a quick but important caveat here. The laws around cannabis are changing super fast, at least relative to how laws normally change. In recent years, including this year, there have been bills introduced that would change in some cases, drastically change the cannabis landscape for employers. So my goal with this presentation today is to really give you the tools to figure out the legal constraints, but the specific information and especially the examples I provide are subject to change.

Megan Lemire (04:43):

Okay, let’s start with the Controlled Substances Act. This is the current federal law that makes cannabis illegal. The CSA is divided into five schedules. Schedule one is the most restrictive meaning that drugs in this category are said to have a high potential for abuse and no accepted medical use. Cannabis is on schedule one, along with such other drugs as heroin, LSD, ecstasy and a bunch of others. Except for really regulated research purposes, drugs on schedule one can’t be used, possessed, sold, grown, really anything.

Megan Lemire (05:25):

CBD oils are on schedule five, which means they’re regulated, but they’re not illegal. This is limited to CBD oils that have less than 0.1% THC and are approved by the food and drug administration for medical benefits.

Megan Lemire (05:46):

One other thing to know about the CSA is that it doesn’t regulate employers. It doesn’t say anything about what employers have to do or can do or can’t do. It’s relevant for us because it says that cannabis is illegal under federal law with that one small exception for CBD oils.

Megan Lemire (06:09):

Moving on to Department of Transportation regulations. The DOT. The DOT requires covered employees to be tested for THC. If they fail the test, the regulations require the employer to remove the employee from their safety sensitive functions. And they set out specific hoops to jump through before they can perform their safety sensitive functions again. What the DOT regulations do not do is require an employer to terminate the employee for testing positive for THC. And say, a lot of employers choose termination because it’s basically the easiest approach and that’s generally permissible, but there could be employment protections from a state law, which I’ll cover in the state law section. So even if the DOT rules don’t prevent you from terminating the employee, some other law might. In other words, you might have to look at doing something else short of termination to stay in compliance with both the DOT regulations and state law cannabis protections.

Megan Lemire (07:23):

That could be reassigning the employee to a non-DOT covered position, or maybe putting them on a leave of absence while they jump through those hoops. I know it’s a little mind bending, but what I hope you’ll remember from this slide is that the DOT regulations don’t actually require employers to terminate employees who test positive. They don’t prohibit it, but they also don’t require it.

Megan Lemire (07:51):

Next up is the Drug Free Workplace Act. The Drug Free Workplace Act is another federal law and it applies to employers that have a federal contract of $100,000 or more and to organizations that receive federal grants of any dollar amount. Generally the Drug Free Workplace Act requires covered employers to make a good faith effort to provide a drug free workplace. It has some specific requirements too, such as having a drug free workplace policy and reporting if an employee is convicted of a drug crime. But as with the Department of Transportation regulations, what this law doesn’t do is kind of where the rubber meets the road. So the Drug Free Workplace Act does not require testing, and it does not require employers to terminate an employee if they test positive. Recently, courts have been scrutinizing this issue a lot more closely when there are potential cannabis protections under state law. So again, the Drug Free Workplace Act is probably not something you can necessarily hang your hat on as an employer to justify terminating an employee who tests positive.

Megan Lemire (09:12):

Next, we’ll talk about the Americans with Disabilities Act, the ADA. Employers often ask if the ADA protects cannabis use, because people who have disabilities could be using cannabis medicinally. Generally, it’s been a pretty clear no, because cannabis is illegal under federal law. The only remaining question here is whether there could be ADA protections for CBD oils that aren’t illegal because they’re on schedule five of this controlled substances act.

Megan Lemire (09:45):

And I think the answer to that question is yes, using CBD oil is probably protected under the ABA. So this could be an issue if you have an employee test positive for THC, and they tell you that they’re using CBD products for their disability. So to say it a little bit differently, the bottom line here is that if the cannabis use is illegal, you can apply your drug policy and discipline without any obligations under the ADA. But if the employees’ cannabis use is legal because they’re only using CBD oils, then under the ADA, you would be required to engage in the interactive process and to look at whether there are accommodations that you can provide. In this case, an accommodation would be waiving any discipline for testing positive.

Megan Lemire (10:42):

This is the last federal law that we’ll touch on, Title VII of the Civil Rights Act of 1964. Title VII applies to employers that have 15 or more employees and requires accommodations for sincerely held religious beliefs, absent under [inaudible 00:10:57]. We don’t really see this argument get made for cannabis related religious accommodations, at least not in published court cases. So I throw it out there as a possibility because apparently cannabis churches exist, but it’s really unchartered territory. Meaning it’s a big question mark, whether employers have obligations under this law or not for “religious cannabis” use.

Megan Lemire (11:26):

So those were the relevant federal laws in a nutshell. Now let’s turn to what’s happening with cannabis at the state level. First up are the laws that either decriminalize or legalize cannabis under state law for medical or recreational use, or both. When I think of the cannabis laws as falling into one of three buckets. Bucket number one is state cannabis law that protects off-duty cannabis use. Number two, state cannabis laws that say they don’t protect off-duty cannabis use. And number three, a state cannabis law that just doesn’t address employment at all.

Megan Lemire (12:07):

So here’s the first bucket, states that have employee protections for using cannabis off-duty. We see the anti-discrimination provisions most often in the medical cannabis laws, but the recent trend has been to protect recreational use as well. A recent example of this is New Jersey extends employment protections for recreational use. And for some states it might not be a blanket prohibition on discrimination, it could be a different flavor protection. For example, Illinois requires employers to essentially let employees argue with them about their conclusion that they were impaired by cannabis on the job before they proceed with disciplining them for on-duty impairment. Which brings me to the exceptions. Even states that have protections under the cannabis law also have exceptions. It’s usually for on-duty impairment, but other common ones are, if the employer would lose a federal contract or federal license, or would violate a federal law.

Megan Lemire (13:19):

Moving on to the second bucket, state cannabis laws that specifically say that employers can still test and discipline employees for cannabis and that the cannabis law doesn’t require cannabis accommodations. Well, that sounds great but these laws don’t take into account protections employees might have under a different law in your state, such as the state disability discrimination law. We’ll get to these other laws in a few slides.

Megan Lemire (13:51):

When I see these types of cannabis laws, I kind of think of them as the witch and the Hansel and Gretel fairytale with her gingerbread house that’s so enticing and the kids run up to it and start eating it. She wants you to believe that you can have a drug policy that says no cannabis allowed, no exceptions. But then she tries to eat the little boy and you get hauled into court for having a policy that doesn’t allow for an exception that’s actually required by a different law. So my message to you is don’t fall for it, back away from that gingerbread house that is this cannabis law that says it doesn’t prevent you from enforcing your drug policy and make sure that you’re checking all the other laws that might apply.

Megan Lemire (14:39):

Okay, rounding out with the third category, state cannabis laws that are completely silent about cannabis in the employment context. This is usually just because employer or legislators are focused on other things like setting up a regulatory framework for newly legalized cannabis. Since they don’t address employment, on one hand, there’s no new protections for employees for using cannabis. But on the other hand, that’s not the end of the road because just as with the last bucket, you still need to check for possible protections in other laws of your state.

Megan Lemire (15:23):

All right, let’s take a pause and jump into a quick poll. What is your preferred cannabis policy? I’ll give you a chance to read through the answers and you can click on the screen to vote. Okay, we’ll give it five more seconds and now I’ll close the poll. All right, it looks like we have mostly B, people prefer to prohibit on-duty use or impairment. Great, thanks so much for participating.

Megan Lemire (16:09):

Now we’re going to get into those other state laws that might have some employment protections for cannabis. First are state restrictions on drug testing. If you’re already doing drug testing, then you’re probably good to go. This is more for employers who don’t have an established drug testing protocol in place. Basically the gist is just to check your state drug testing laws, to see if there’s any restriction you should know about. Some states don’t allow drug testing in certain circumstances. Vermont, for example, doesn’t allow random drug testing. Maybe it’s that you can’t use hair to test, it’s got to be urine, or maybe there’s a requirement to offer rehab if an employee tests positive. None of these are going to be specific to cannabis. It’s just one source for you to check to make sure you’re crossing your T’s and doting your I’s.

Megan Lemire (17:07):

Next are state disability discrimination laws. These are like the state law version of the federal ADA, except that the recent trend here has been for courts to find protections under state law. In other words, some states require employers to reasonably accommodate employees who use cannabis off-duty because of a disability under the state disability discrimination law. And as I mentioned before, when I say accommodate, that usually means ignoring a positive drug test. But the discrimination provisions also would prevent an employer from terming an employee if they find out otherwise that the employee uses cannabis off-duty for medical reasons.

Megan Lemire (17:53):

When these arguments first started, courts generally agreed with employers that wanted the state disability law to exclude medical cannabis from its protections. But recently the tide has shifted and courts are increasingly finding an obligation to accommodate under the state disability law, even though cannabis is illegal under federal law. What’s most challenging for employers, I think is that we don’t know how a court will interpret the interaction between the state disability discrimination law and the state cannabis law, if they haven’t done it already. In those cases, it really comes down to a matter of your risk tolerance.

Megan Lemire (18:40):

Another thing to note is that disability in this context is generally pretty broad, so if the employee is using medical cannabis, the chances are pretty high that they’d be considered disabled under the state disability discrimination law. It’s not a guarantee, but it’s a pretty safe bet.

Megan Lemire (19:03):

Another state law that employees might have employment protections under, or what are known as lawful off-duty conduct laws or lawful off-duty consumption laws. These laws exist in a handful of states and generally prohibit employers from disciplining employees for participating in legal activities outside of work. And here, states with these laws are on both ends of the spectrum. For example, in Montana and New York cannabis use off-duty is protected under that their state lawful off-duty conduct laws. Whereas in Colorado, the courts have said that cannabis use is not protected under the Colorado lawful off-duty conduct law.

Megan Lemire (19:48):

The next type of state law is religious discrimination. These are like the state version of Title VII, the federal law that requires religious accommodations. And here just as with Title VII, its uncharted territory.

Megan Lemire (20:05):

Here’s the last type of state law we’ll look at today, wrongful discharge. Most states allow employees to file a lawsuit for wrongful discharge and violation of public policy. This is generally a narrow exception to at-will employment. It’s usually when an employee gets fired for doing something in the public interest, like telling authorities that their employer is dumping hazardous waste into the river. There haven’t been many reported cases involving a wrongful discharge claim for using cannabis. The ones I’ve seen have come up in the context of medical cannabis use and have failed, but it’s worth keeping this in the back of your mind as a possibility.

Megan Lemire (20:53):

So that was an overview of the legal landscape when it comes to cannabis and the workplace. Let’s shift gears and talk about creating the policy that you want to have. So this compliance framework is basically what we just covered, just laid out in bullets. And to create your policy, I recommend starting with the compliance framework to see what legal obligations you might have. Outside of any legal constraints, I recommend considering what the common practice is for other companies in your industry when it comes to cannabis. Testing for cannabis could negatively affect recruitment if you’re in a field that may have high use rates.

Megan Lemire (21:39):

The tech industry, for example, is known for sometimes taking more relaxed approach to cannabis use. And Amazon was recently in the news announcing that it won’t test for cannabis other than if it’s required to. Finding out what approaches your competitors are taking in your area could influence the type of policy you want to create for your business. And the same goes for geographic location, if you’re in a state with legalized recreational use your talent pool might be a little smaller if you weed out applicants who use cannabis.

Megan Lemire (22:15):

According to the CDC, about 18% of Americans use cannabis, at least once in 2019. So if you want to have a strict drug testing policy, I would say, just be prepared to enforce it because you might end up having to terminate an employee who is otherwise a good performer. Job based distinctions, so sometimes employers want to know if they can test for certain jobs, but not others. I think that’s probably fine if you have a legitimate basis for the distinction, which is basically testing for safety sensitive roles. Even so, if you’re going to make job based distinctions, you should consider the protected characteristics of employees you’re testing. And by protected characteristics, I’m talking about things like race, gender, national origin, disability, so on.

Megan Lemire (23:09):

So to give you an example, let’s say you’re a tree trimming company and all your tree trimmers are men and all your office workers are women, and you only test your tree trimmers. Then they might feel like there was gender discrimination. And lastly, some employers may be okay with off-duty use, but want to make sure they can prohibit on-duty to use or impairment. This is generally fine. The main issue is how are you going to enforce it? Because as I mentioned earlier, testing can’t prove that an employee is currently under the influence. My general recommendation here is to pair testing with documentation of signs that the employee is impaired at work.

Megan Lemire (23:55):

Of course, you should put your policy in writing and you’ll want to be as clear as you can about what behavior is prohibited and what’s allowed because the legalization of cannabis has created a lot of confusion. I think that it’s really helpful to call out cannabis specifically in your policy. So saying whether it’s prohibited or not, and saying whether it’s tested or not. Your policy should tell employees that they could be tested if you plan to test or want to have that ability in the future. I generally recommend saying under what circumstances you’ll test so reasonable suspicion of impairment, random, periodic, whatever it is that you intend to do. And of course you should say that a positive test may or will result in discipline, including termination. And a good policy should also indicate how a refusal to submit to a drug test will be handled. It’s usually the same as a positive result and that’s fine. I just think it’s really helpful to put that specifically in your policy.

Megan Lemire (25:01):

Once you’ve decided on the substance of your policy, the next step is implementing it. You want to train your managers, including explaining the reasons that you’ve chosen the policy you have, and also outline their obligations so they can feel confident implementing it. They should know what signs indicate possible impairment, and that they’re responsible for documenting it, that they should call a cab or an Uber to transport an employee for testing. And let me just pause to emphasize that someone else should drive an employee that you suspect to be impaired to go get tested. Do not put someone you think is high behind the wheel of a car. Okay, PSA over. A manager should also know to contact HR if the employee says they use cannabis for a disability or a religious reason. Basically that’s just a request for an accommodation, so HR should get called in at that point.

Megan Lemire (26:05):

The policies should be part of your employee handbook and/or on a separate notice if you need to change it. In either case employees should sign off if they’ve received it. And candidates should be told that they’ll be subject to drug testing for cannabis, if applicable. That way, they can just lead themselves out. Lastly, it’s important to be consistent. That means that you’ll want to treat similar situations the same to avoid a potential claim of discrimination. For example, if you’re going to use drug tests as a basis for discipline and two employees come back with a positive THC result, you shouldn’t fire the employee you don’t like and keep the one who happens to be your friend.

Megan Lemire (26:51):

Okay and now I will take some questions. Just give me a minute to review what you’ve chatted in and I’ll be right back.

Megan Lemire (27:43):

Okay, we’ve got a lot of great questions. Some of them are pretty specific scenarios. So I should note that I’m an attorney, I am not your attorney, so I’m not giving you legal advice. I’ll provide some general information, but my responses aren’t going to be comprehensive. If you live in a state with protections or you’re not sure of their protections in your state, I would recommend that you consult with an employment law attorney in your state to take a look at your specific circumstances and give you a legal opinion there.

Megan Lemire (28:16):

So the first question is, what do I do if an employee comes to work after smoking in their car? If you’ve got a drug policy, I recommend applying that. Most policies are going to prohibit on-duty impairment and allow testing based on reasonable suspicion. So follow your regular procedure, which should really include documenting the objective signs that they’re high. That could be inappropriate giggling, lethargic movements, or slowed speech, severe lack of focus in normal conversation, the smell of cannabis. So if you’ve got some of these telltale signs written down and the employee test positive for THC, I’d say most employers feel comfortable relying on those two things in combination to support disciplining for on-duty impairment.

Megan Lemire (29:07):

If on the other hand, the employee just smells like cannabis, but they’re not acting high. In which case I’d say you don’t have reasonable suspicion to test. Then I think the best recourse would be addressing the odor. Hopefully you’ve got some kind of professional appearance and hygiene policy that covers odors, which can serve as an anchor for that conversation. But even if you don’t have something concrete in place, you can still address the offensive odor directly and make sure to document the conversation and what action you took.

Megan Lemire (29:44):

Can I ask for a doctor’s note to prove that they use medical cannabis for a disability? Generally, yes. As long as it’s for a non-discriminatory reason, and you’re not requiring a specific diagnosis, the most common non-discriminatory reason is in the context of an employee requesting a reasonable accommodation. For medical cannabis, it’s usually that they’re asking you to allow them to have a positive THC drug test result without getting discipline for it. So you can require documentation to support their accommodation request as long as you’re being consistent and not doing it just for medical cannabis related accommodations.

Megan Lemire (30:30):

My state has medical cannabis, can I keep cannabis in my drug policy? Yes, absolutely. You can still test and discipline employees who use cannabis recreationally if the only protections are for medical use. And so you can still have your policy on the books, it’s just when someone’s using medical cannabis for a disability that you might have to grant accommodation, so not discipline them for it.

Megan Lemire (31:03):

A related question is about alcohol. You can more or less treat medical cannabis, the same as alcohol or recreational cannabis for that matter, if there are recreational protections. Just because alcohol is legal, doesn’t mean you have to allow someone to show up to work drunk and you can discipline them for being impaired by alcohol. Same thing with cannabis, you can discipline employees for showing up to work high on cannabis, regardless of whether there are medical or recreational protections.

Megan Lemire (31:36):

The tricky thing is practically how to do it. So alcohol’s great, easy for employers to test because the BAC, which I can’t remember what it stands for off the top of my head right now, but that correlates really closely with impairment. So you go get the test done for alcohol and it’s pretty conclusive that they were drunk on the job. With cannabis, there’s no direct correlation there, or it’s not as close I should say. So the window now might be 24 hours if you can do a spit test, but it’s not going to by itself prove that they were impaired. So that’s why I really emphasize to employers to document those objective signs of cannabis impairment. Best practice is to have two managers document it and that way… And also, I should say, not just one sign, bloodshot eyes is one sign of being under the influence of cannabis, but bloodshot eyes by itself could be caused by a lot of different things, like lack of sleep. So you really want to have more than just one sign that indicates on-duty impairment.

Megan Lemire (32:54):

Would there be risk with drug screening, but omitting marijuana? There could be. First if you’re required to test for THC, for example, a DOT driver, then you got to follow the law. Second, if you’ve got employees in safety sensitive positions, I’d generally recommend testing in tandem with the documented observations of current impairment. When it comes to safety sensitive positions that aren’t specifically required to get tested for THC, I think about OSHA’s general duty clause, which requires employers to provide a safe workplace. And if someone got hurt at work, because an employee was high, you’d want to feel confident in your policies and procedures to prevent that from happening.

Megan Lemire (33:42):

But if you don’t test for THC and you don’t have any safety sensitive roles, then it should be fine to test for the “hard drugs” like meth and cocaine, but not test for cannabis. There may be a practical limitation because the standard five panel urine test does test for THC. So you would either need to find a lab that offers more specific like menu options, or you could just ignore the THC result in the report.

Megan Lemire (34:23):

Should the policy be a standalone or can it be combined with overall drug free workplace policy? I think that it’s best to have it in your regular policy. I don’t think you need a specific cannabis policy. I just think it’s helpful to say what your approach to cannabis is specifically just because the legalization has caused a lot of confusion for employees. So you don’t need a cannabis specific policy, just put in your regular drug policy, whether it includes cannabis. And then train your managers about keeping in mind that people might be asking for an accommodation as an exemption from the policy if they’re using cannabis for a religious or disability reason.

Megan Lemire (35:19):

I am in California where it is legal, what about employees that want to use cannabis on their lunch? So let me flip back to… And we’re about six minutes over time, so this’ll be the last question I take. Let me flip back to my compliance framework slide. No, Sarah, if you can go back, I think it’s slide 23. So in a nutshell, California doesn’t have any clear protections for cannabis, kind of going through the list here, cannabis, drug testing, disability discrimination, wrongful discharge, they’ve all been said there are no cannabis protections there. The only two remaining ones are lawful off-duty conduct law and religious discrimination. So maybe there’s an argument. I think it’s unlikely, but I would treat someone who’s going to smoke cannabis on their lunch break under either your impairment. Treating it as on-duty impairment or the odor, as I mentioned earlier.

Megan Lemire (36:34):

Okay, that is a wrap. Thank you everyone for joining me today and keep an eye out for an email with the deck and the recording in about 24 hours.

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