Across the nation, the attitude towards marijuana use, both medical and recreational, has changed greatly over the last decade. In 2016, The Pew Research Center reported that 57% of those polled supported the legalization of marijuana while 37% wanted it to remain illegal. Those numbers were reversed just 10 years ago, with just 32% of respondents supporting legalization and 60% opposed.
As of January 8, 2018, 29 states legalized the use of medical marijuana and 8 states legalized the use of recreational marijuana. As an employer, how can you handle the ever changing legal and social landscape regarding marijuana use?
On a state level, there are no laws that require employers to tolerate marijuana use on the job, even if it is medicinal and legal. However, there are cases being brought before the courts more frequently and this is an area that is still not clearly defined.
It is important to note that the federal government still regards marijuana as an illegal substance. Because of this, employers may not need to consider its medicinal use as an accommodation under the ADA. Also, any company that is a federal contractor will still need to abide by the Drug-Free Workplace Act of 1988, regardless of what the state allows regarding medicinal or recreational marijuana use. The DOT also insists that any of its regulated drivers are required to test drug-free and will not accept medical use as an excuse for a positive drug test.
As companies and employers navigate through this issue, what can be done? A start is to be sure your company has a clearly defined drug and alcohol policy. If you already do, does it specifically address the use of medicinal or recreational marijuana (depending on what may apply in your state)? Now is the time to take a look at your workplace drug and alcohol policy in more detail and make adjustments as necessary.
Review any laws or court cases in your state as it applies to medicinal or recreational marijuana use so that you are in compliance with any state laws or rulings.
Be aware of how federal statutes may apply to your business.
Does your policy include specific language addressing marijuana use, especially if you are in a state where some form of it is legal? Familiarize yourself and be able to define the terms related to marijuana in your policy such as “medical marijuana, “medical use”, and “recreational use”.
Have a very clearly defined explanation of what it means to be “under the influence” as well as what the rules and consequences are regarding impairment/intoxication during company time.
Review your current drug testing policies and how the company will view “off the clock” use. THC, the active chemical in marijuana, can remain in the system anywhere from 24 hours to possibly several months. Does a zero tolerance policy on drug testing work for your company or do you need to adjust it? Would you take action against an employee who had a glass of wine over the weekend, but didn’t show up to work impaired? If you have an employee who uses marijuana medicinally (or recreationally if you’re in a state where that is legal) should you take that into consideration when evaluating the results of drug testing?
Make sure all employees understand and are aware of the policy and you are ready to apply it in a consistent manner.
Clearly this is an issue that has more questions surrounding it than answers at this time. But, with several more states poised to make medicinal and/or recreational marijuana use legal, it will need to be addressed and handled in a fair and ethical manner while still providing a safe and productive work environment for all employees. If you have questions about the current laws in your state, please contact us here at De Novo HRC at 610-340-1170 x 105.
Disclosure: The content of this blog is provided for informational use only, and is in no way intended to constitute medical or legal advice.