Clearing the Haze about Marijuana in the Workplace

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ThinkHR Chief Knowledge Officer Laura Kerekes writes a monthly “Innovative Workplace” column for Rough Notes, a publication that has been serving the insurance industry since 1878. While geared toward brokers, much of the information in her columns is applicable to human resources professionals. Enjoy February’s column on the hazy situation created for employers in the growing number of states that have legalized recreational marijuana.

Clear Vision Regarding Accepted Practices Is Hard to Find

Legalized marijuana is a hot topic for 2018, making human resources and risk managers’ jobs more difficult. With expanding legislation legalizing medical and recreational marijuana spreading across the country, what used to be a clear workplace policy enforced by HR and safety managers—zero tolerance—is becoming hazier.

Support for legalization is reaching new highs, according to a Gallup poll reporting that 64 percent of Americans support legalization. Legal marijuana sales were predicted to reach $9.7 billion in North America last year, marking a 33 percent increase over 2016, according to cannabis industry analyst Arcview Market Research. Arcview’s analysts forecast that the legal cannabis market will grow 28 percent annually by 2021, as more states legalize marijuana for recreational use and today’s markets mature, as long as the federal government doesn’t crack down on state-legal cannabis.

Current Situation

Today, nine states and the District of Columbia have legalized marijuana for recreational use: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. Twenty-nine other states have legalized medical marijuana.

At the federal level, the Food and Drug Administration (FDA) maintains its position that marijuana is an illegal Schedule 1 drug. The Occupational Safety and Health Administration (OSHA) supports consistent testing and regulation of the drug in the workplace, and workers compensation underwriters take the same position. Businesses that have federal contracts must follow the Drug-Free Workplace Act and can lose eligibility for federal contracts unless they have strong zero-tolerance drug policies. Some states have similar rules for state contractors.

Businesses have a duty to protect employees and customers by providing a safe and healthy work environment. Historically, this responsibility meant that employers could develop and administer a zero-tolerance policy against substance abuse in the workplace with the right to test for the presence of those substances. For multi-state employers, there may be confusion today over how to apply the policy consistently across the organization with operations in states that have different laws about marijuana. Are they still able to use a consistent policy across the organization or does it need modification based upon the differing state laws?

What about testing for cannabis intoxication based on reasonable suspicion? Unlike alcohol, where the smell might trigger reasonable suspicion, this might not be the case for cannabis use. Depending upon how it is consumed, new technology delivering edible products loaded with THC, marijuana’s psychoactive component, and vape devices delivering concentrated THC, has eliminated the skunky smell once associated with the drug. Further, the marijuana industry suggests that drug testing is futile because the drug tests could yield positive results even if the employee hasn’t used the drug recently. The good news for employers is that there are new oral swab tests on the market that can detect actual impairment through saliva with a shorter detection window that contrasts with urine tests that don’t necessarily correspond to current impairment levels.

In addition to the questions about how employers manage the new reality of legalized marijuana in states where they operate, they also have a business to run. The talent war is still in full swing in many areas of the country, and attracting and retaining the best employees continues to be a priority. Competing for that top talent means projecting an employment brand that is employee-friendly, and some businesses might feel it necessary to soften their zero-tolerance policy to attract that talent.

Business Options

For states without marijuana laws, employers can keep the current zero-tolerance policy and rely on the federal government’s strong stance that would support that approach. Federal contractors subject to the Drug-Free Workplace Act can continue to follow the requirements under the law to maintain eligibility for those contracts.

In states where medical marijuana is allowed, however, employers may have a duty to accommodate its usage, as with accommodations for other prescription drugs. The accommodations might include moving the employee to a less safety-sensitive position, changes in work hours, or other accommodations that would be considered reasonable and not cause undue hardship to the business. Employers should consult with legal counsel if these situations arise.

While the situation is still hazy, for employers in states with legalized recreational marijuana, most experts believe that it is allowable to continue enforcing policies restricting marijuana use on the job.

Key Actions to Take

Now would be a good time for HR and risk management to review the organization’s drug and alcohol policy. Seek legal counsel if operating in areas where marijuana is legal to ensure that any court interpretations are considered in drafting or refining the policy. Next steps should include the following:

  • Define what is considered substance abuse and what types of substances are covered under the policy.
  • Outline the process the company will take for determining reasonable suspicion for testing, the procedures for allowing the employee to remain at work or be sent home, and the penalties for infractions of the policy.
  • Affirm that employees who disclose medical issues or request accommodations relating to a disability will be protected from discrimination and retaliation.
  • If testing is part of the policy, review options for the oral swab technology that could yield better results for recent marijuana usage.
  • Review the policy with safety, risk management and legal counsel.
  • Communicate the policy to all employees.
  • Train managers regarding the policy, procedures to follow and how to detect signs of impairment.

In conclusion, even though the trend continues towards legalizing medicinal and recreational marijuana, none of the laws extend to employers being required to allow its use in the workplace or to allow an employee to work impaired. Maintaining a policy and consistent practice that balance safety concerns with business needs is important to protect the business, its customers and employees.

Get it All

ThinkHR customers can find drug and alcohol testing regulations by state, as well as forms and policies that can be customized and distributed to employees, in Comply. Not a customer? Ask your broker about ThinkHR’s compliance, training, and documentation solutions.

About Laura Kerekes, SPHR, SHRM-SCP

Laura Kerekes is ThinkHR’s Chief Knowledge Officer and leads the company’s human resources knowledge operations teams. She provides expertise to customers with complicated human resources and management issues, offers knowledge and guidance regarding management and HR best practices, and regularly shares her expertise through articles and webinars.

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