How is the Cannabis Landscape Affecting HR?

Thirty-three states and the District of Columbia have taken steps to decriminalize the use of marijuana. While 10 states—Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington—and our nation’s capital have adopted laws legalizing recreational cannabis use, the other states have only loosened the laws to allow for the use of medicinal marijuana (see where your state stands on this interactive map). It should be noted, however, that marijuana use—even for medical purposes—remains illegal at the federal level (and federal laws trump state laws…more on that in a minute).

While the data is a bit murky in terms of whether this shift in legislation has led to increased use, the bottom line is that access to marijuana is now easier than ever. So, how will the broadening legalization of cannabis impact the way we conduct business?

The degree to which you are personally impacted by these changes will vary very much based on the state where you live and the work that you do. If you’re in a state that has legalized marijuana—or live very closely to one that has—your employees could ostensibly have much easier access to cannabis than if you lived away from these areas. Furthermore, if you operate a business where safety is key—such as a long-haul trucking company, a flight instruction school or a workplace where security is paramount—the risk of your employees doing harm while under the influence is far higher than if you’re running an accounting firm.

However, there are more widespread challenges that just about every business will have to overcome. One issue that has come up with employers in states where marijuana is legal is whether employment protections are afforded to recreational marijuana users. Employers operating in states that do have such protections would not be able to decline to hire an employee or terminate a worker following a positive drug screen. Now, this becomes particularly problematic if you are an employer operating in multiple states with myriad levels of marijuana legalization because you can’t have just one policy and must instead follow the laws in each state.

When it comes to the issue of drug screening, some companies have ditched mandatory drug testing for all employees altogether, largely based on the grounds that it would cut out a large portion of their candidate pool. Others, meanwhile, have chosen just to test those employees in roles where safety is key or when impaired performance is suspected. Again, only you can define those roles and you must be able to stand up in court to defend your action should your decision be called into question. This would not be the case where federally mandated drug testing is required for a position (because, again, federal law always supersedes state laws).

Another issue that you need to consider is where to provide accommodations for workers who use medical marijuana. Workers can hold a medical marijuana license for ailments as serious as terminal cancer to a condition like the fear of flying, and they aren’t required to provide you with the reason for their prescription because they are protected under the Health Insurance Portability and Accountability Act (HIPAA). Some employers have declared their workplaces drug-free zones, which is in direct opposition to providing accommodations. While there isn’t a landmark lawsuit on the books to serve as an example for what employers should do, the Americans with Disabilities Act (ADA) stipulates that accommodations must be reasonable in nature. Again, whatever you decide to do in your workplace, you must ensure the information you used to support your decision would stand up in court.

Finally, you have to determine how marijuana use may factor into termination decisions at your company. Some companies that suspect on-the-job impairment opt to conduct a drug test and render a decision based on its results. However, depending on what is stated in your employee handbook, suspected impaired performance may be more than enough to support a decision to let someone go (even without the drug test confirmation). You may need to flesh out what constitutes impairment at your company including what factors determine impairment, how it should be reported, to whom it should be reported, what happens next (mandatory drug testing, sending the employee home), and the outcome (reprimand, termination).

While there is clearly no one-size-fits-all approach to how companies should react to new cannabis laws, the best path forward is to stay knowledgeable about the laws in the state or states where you operate your business. Furthermore, think about your company’s policies and how you may have to amend your employee handbook.

As always, we here at Abel HR have a keen eye on the latest developments and are more than happy to assist you as the cannabis laws and your company policies evolve. Call 609.860.0400 and we’ll put you in touch with our team of experts to talk it through.