When Marijuana Is Legal, It Gets Complicated for the Employer
Updated: May 6, 2020
Author: Fawn Hentrel, Managing Partner, Accendi Group
The legalization of marijuana for recreation and medical use is giving pause to employers who have crafted boilerplate, or strict, policies and procedures on the “what” and “how to” carry out these work-place drug policies. Industries hurting for workers particularly in the hourly classification such as hospitality, manufacturing, and retail are beginning to soften or rethink their policies as more states make it legal.
Regardless of the name it may be known by, bhang, cannabis, ganja, hashish, kef, kush, marijuana, or weed, a new trend with legalized marijuana is seeing employers beginning to review, update, and sometimes soften their policies depending on the state law changes.
Is it legal to use marijuana at work if your state has made it legal? No, it is not. Federal law still views it as a schedule 1 drug and this regulatory category lumps marijuana in the same classification as heroin, LSD, and ecstasy. This classification doesn't mean that the federal government views heroin and marijuana as the same dangerous drug, its schedule reflects a more complicated system that looks at a drug’s potential for abuse and its medical value. Legalizing the drug doesn't require employers to accommodate or permit marijuana in the workplace.
Safeguarding your company against these new changes in state law is even more paramount for employers as, according to the FDA, marijuana is still considered a controlled substance. However, with the expanding legalization of adult-use recreational marijuana and medical cannabis, employers are faced with the issue of how to handle marijuana testing and use during work hours. Under federal law and many state laws, employers are required to provide reasonable accommodations to employees with disabilities to help them perform their jobs. With the rise of legal marijuana use, the question has been asked about how marijuana use affects an employer’s reasonable accommodation obligations.
An added area of ambiguity is in the area of marijuana testing for employers. When a state law changes, do you look at new use that is acute vs frequent chronic use? Again, the jury is still out. Federal law considers a positive marijuana test at 50 nanograms to include the active ingredient THC. Unlike drug alcohol levels this limit can be detected days after the last use and after any marijuana impairment has passed because marijuana stays in the system longer than many other drugs.
With employees being able to access marijuana not only through smoking but through edibles, imbibing or vaping, employers with employees in more than one state should consider updating policies to address the variations in the law.
So how should a company address the changes in law?
I believe many companies are taking a wait and see approach with legalization. Some may choose to loosen restriction for non-safety sensitive positions. However, industries such as construction and manufacturing are already challenged with finding workers who test clean for drug use. On the other hand, businesses may still choose to drug test all job applicants regardless of state law regarding medical marijuana or recreational use.
A business may take the approach to continue drug testing because it is unclear the impact on the company’s business insurance, ss company’s receive incentives to provide a drug free workplace to obtain reduced company premiums for workers’ compensation insurance. It is still unclear how these new state laws could affect these incentives.
Another approach could be to establish floors or minimum thresholds similar to alcohol testing, so a person who tests positive may not suffer employment consequences, as long as the result is below an established threshold. This approach is important to consider as, according to the last National Survey on Drug Use and Health conducted for the U.S. Department of Health and Human Services in 2016, 24 million Americans ages 12 and over were users of marijuana.
There are ten states, including the District of Columbia and Michigan, where recreational use of marijuana is legal; and 33 states, including the District of Columbia and New York, where medical marijuana is legal. So, what does all of this mean? With the constant changes in state law and the Federal laws still in place, my first recommendation to employers is to continue to keep a drug free workplace policy in place to obtain their premium incentives. Secondly, I would encourage employers to keep a consistent policy in place across all states until Federal law changes or an accommodation based on medical use has to be made.