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Legalization Laws Are Forcing Employers to Rethink Cannabis Policies

March 15, 2018
With medical cannabis now legal in 30 states, and adult-use legal in 9, testing employees for legal cannabis consumption suddenly makes less sense. (BENCHAMAT1234/iStock)
Editor’s Note: This article, which originally appeared in HR Dive, offers insight into how cannabis is viewed in the human resources field. Leafly is posting it courtesy of HR Dive’s parent company, IndustryDive.com

WASHINGTON, D.C. — The Society for Human Resource Management (SHRM) holds a panel on state and national drug law each year at its employment law and legislative conference, but this year shifts in state law — and deep tragedy — have brought the issue to the forefront.

Faced with legal medical marijuana in 30 states, what's an employer to do? Many are adapting to the new reality.

James Reidy, an attorney at Sheehan Phinney Bass & Green PA, jokingly said he’s become known as the “pot lawyer” partly thanks to the wave of marijuana laws and court precedent that has forced employers to reconsider their drug and alcohol policies and testing procedures. At the same time, the opioid crisis continues to rout communities and is draining employers of talent and productivity dollars, prompting many into action.

Federal action isn’t clarifying matters much. Earlier this year, U.S. Attorney General Jeff Sessions rolled back the 2013 Obama-era Cole memo that essentially relaxed federal enforcement of marijuana law on states that had legalized its use. So far, employers don’t have much detail on how this newly sparked conflict between state and federal law will look.

What’s an employer to do? That’s the question of the day.

Social Mores Keep Evolving

On a personal level, social mores on marijuana continue their massive sea change, and in a tight labor market, its now almost a liability in some workplaces to have a zero tolerance policy on drug use, Reidy said.

In a tight labor market, it now may be a liability in some workplaces to have a zero tolerance policy for cannabis.

While CEOs still tend to opt for termination over rehabilitation for drug use, the reality is that employers may not be able to afford to do so while recruitment and retention remain a key HR concern.

During the panel, many attendees reported they mandated post-accident drug testing, reasonable suspicion testing and random testing, but Reidy noted that national numbers on all three practices were trending downward. If anything, employers may need to reconsider their drug testing and use policies — both to accommodate changing marijuana law and to reach out to those struggling with addiction.

Drug Use by the Numbers

If an HR manager hasn’t dealt with a drug issue at their workplace yet, its likely they will very soon. According to stats that Reidy shared:

  • 28.6 million people used an illicit drug in the prior month, and 24 million of those had used marijuana
  • 71% of employers are impacted by prescription drug abuse 
  • 81% of employers lack a comprehensive drug-free workplace policy (though Reidy said he doubts that stat)

Employers are dealing with the whole spectrum of drug use, from alcohol and marijuana all the way up to heroin abuse — already a difficult issue without the myriad of state laws varying on marijuana’s legal status.

Generally, employees that abuse drugs contribute to increased turnover and are less productive at work, making this a central issue of modern workplace management.

Related

Cannabis Impairment in the Workplace: Easy to Discuss, Difficult to Detect

Current State of the Laws

Currently, 30 states and D.C. have legalized marijuana in some form, while nine states and Washington D.C. have legalized it recreationally. The federal government maintains its hardline stance against marijuana, and it remains wholly illegal at the federal level. That disconnect has prompted employers to reconsider how they respond to marijuana use outside of work, but even testing at work has come under some scrutiny.

There are currently no widely adopted tests or standards regarding how much THC in the body is acceptable.

Upon an informal poll of the room, some attendees noted that they had changed their drug policies and testing procedures to remove marijuana testing entirely from their processes.

Employers generally retain the right to discipline an employee who is impaired by drugs while at work. But while blood alcohol content is a well-accepted standard of how impaired someone is, for example, there are currently no widely adopted tests for how much THC in the body (the cannabinoids responsible for the mind-altering aspects of marijuana) is considered acceptable. And hair follicle tests can show results differently for different hair types, which could create an issue of disparate impact, Reidy said.

Identifying Impairment Isn’t Easy

So who is impaired, and therefore breaking policy, while on the job, especially in states where marijuana is legal recreationally? Good luck finding out.

Beyond marijuana legalization, some states are wading into laws around employee rights and protections regarding marijuana use. Maine now prohibits employers from discriminating against workers based on their marijuana use outside of work, for example.

Will states ultimately win out over the current federal stance? “Don’t bet the farm on it,” Reidy said — mostly thanks to worker’s compensation.

Carriers still do not pay for medical marijuana as part of an injured worker’s treatment, and they rely on federal law to maintain that position. After the 2013 Cole memo, some courts began to force carriers to pay up for medical marijuana treatments due to the low risk of prosecution, Reidy said, but now that memo is no longer in play.

Related

How long does THC stay in your system?

Opioid Crisis is Changing the Workplace

Marijuana legalization is a complex aspect of legal compliance, but opioids have forced employers to reconsider how they approach addiction. As already noted, addiction places huge drains on employer productivity — and that doesn’t even account for the very human cost of addiction injury and death. One in five workplace injuries and near misses were caused by misuse of drugs, and opioid abuse alone can cost employers $12 billion each year, Reidy noted.

Forward-thinking HR people may face serious barriers in perception on this issue, however; while 71% of employers say addiction is a disease that needs treatment, 65% are likely to fire someone with an opioid addiction.

In response, Reidy suggests a two-pronged approach that includes education, especially of company supervisors, and alternative methods of pain management. HR will need to align with employee assistance programs (EAPs) and with workers’ comp providers to lessen the use of opioids and get provider buy-in for the anti-opioid direction.

Employers also can work toward being more proactive in how they handle addiction by ensuring confidential access to help if asked and generally not opting for immediate termination if they can help it — though that doesn’t mean employers are required to ignore drug problems. (They should, however, review any applicable disability nondiscrimination laws.)

Related

How to Get Hired to Work in the Legal Cannabis Industry Part 3: Getting Hired as a Grower

What’s a Better Work Policy?

One major theme from the panel: Adopt or update your comprehensive drug and alcohol policy now.

Currently, zero-tolerance policies (including marijuana) are still acceptable, Reidy said. But increasingly, the pressure to recruit and retain individuals are pushing HR departments to relax these policies.

Either way, policies must:

  • Prohibit the use, possession and sale of drugs on company premises;
  • Forbid showing up to work under the influence;
  • Reserve the right to conduct searches on workstations; and
  • Ensure compliance with applicable state and federal laws.

If you do continue to test employees for drug use, be sure to fully explain the testing procedures. Describe what happens if a test is positive or if the employee refuses to take the test. And have employees who take prescription medications that could impair performance inform the employer — though Reidy notes that this can get complicated and involve health disclosures an employee may not have wanted to make otherwise.

ADA and Other Concerns

Does the Americans with Disabilities Act (ADA) protect medical marijuana users? No. Not yet, anyway. Currently, while medical marijuana use is “not permitted” as a reasonable accommodation, states have their own policies on this. One case in Connecticut upheld the status of a qualified medical marijuana patient, which could signal future change in this area.

Generally, however, if your conduct and performance expectations are clear and an employee is impaired, you can still discipline them. Consistency is key.

While not many workplaces are considered ‘recovery friendly’ as of yet, more employers may move in that direction as the war for talent continues to heat up — and as more employers recognize the social good it can do for communities, Reidy said. Like the increased acceptance of hiring the formerly incarcerated, drug use rehabilitation at work may soon be seen as a boon for employers and employees alike.

Kathryn Moody's Bio Image

Kathryn Moody

Kathryn is the editor of HR Dive, part of the IndustryDive.com group of publications. This article appears courtesy of IndustryDive.com.

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  • Jeffrey Avery

    it is amazing how, childrens health issues(((MMJ saving there lives)))doesn’t affect the thinking of the big wigs/any,public or private sector(generally speaking,of coarse),,,but,,,companies start to loose a lil’ money-in the form of lost productivity–and boy,they flip on a dime… it’s all a matter of perseption really,,,,,,,take for instance ,my comment of “flipped on a dime”…you might say that employers are very slow to change,true when you look only at time by itself,but if you compare it to how long the fight for mmj has been going on,then you get a much different picture of things……i gladly welcome,someone/anyone to challenge me…i would like to debate this topic further,,,remember ,””more speach”” is the answer,,thank you and peace out

  • FlunkedAgain

    I’ve heard of a Wall Street firm that tests for Abuse, not Use. If you can do your job nobody cares.
    I’ve worked with Alcoholics whose intoxication wasn’t obvious to the casual observer.
    Either you can do the job, or you can’t. That should be the deciding factor.

    If you let someone go, and they go to work for your competitor, who will be hurt the most?

    • Highway 69

      It sounds like the same testing methods that the military used (uses?), which was a Gas chromatography–mass spectrometry (GC-MS) test. Essentially, if it identified any presence of THC, then the sample was further tested to see how much THC the sample contained to rule out “second hand smoke” claims — or “use vs. abuse”, as in your example.