Looking Through the Haze: 5 Steps for HR on Recreational Marijuana

Author: Melissa Gonzalez Boyce, HR & Compliance Center Content Manager, HR and Employment

January 27, 2023

A whopping 21 states, along with the District of Columbia, have legalized recreational marijuana - all since November 2012. It's a trend that appears here to stay.

But given the complex patchwork of federal and state laws addressing recreational marijuana use, both in the workplace and during nonworking hours, it's no surprise we are often left with more questions than answers. For instance:

• May an employer prohibit marijuana on its premises?
• Is it permissible to test employees?
• May an employer terminate an employee who tests positive for marijuana use?

However, while recreational marijuana laws vary by state, here are five steps for all employers to consider when addressing recreational marijuana use.

1. Understand What Federal, State and Local Laws Apply

With the legalization of recreational marijuana spreading throughout the country, how do those laws affect an organization's position on marijuana use and its ability to enforce certain drug policies and procedures?

It's an especially dicey question because the federal Controlled Substances Act still categorizes marijuana as a Schedule I illegal substance. As a result, employers may implement drug-free workplace policies and prohibit employees' use of marijuana, regardless of whether recreational marijuana is legal in their state.

Other federal laws also addressing employees' use of marijuana include:

• The Occupational Health and Safety Act of 1970 contains a general duty clause which has been interpreted to apply to hazards created by employees' marijuana use.
• The federal Americans with Disabilities Act (ADA) protects individuals who are former or recovering addicts from discrimination by employers. However, current illegal drug use is not a protected disability under the ADA.
• The federal Drug-Free Workplace Act of 1988 requires covered employers to implement policies supporting a drug-free workplace and to report employees who engage in drug-related activities at work.

States

Although more states are legalizing recreational marijuana, none require employers to allow marijuana use at work, or an employee to be under the influence while on the job.

However, several states have discrimination protections for individuals who use recreational marijuana. For instance, New York bans employers from refusing to hire, employ, license or discharge an employee because of their legal marijuana use outside of working hours and off an employer's premises. So, consult state law before disciplining or taking other adverse action against an employee for their off-duty recreational marijuana use.

Those operating in multiple states face additional challenges in tracking the various marijuana laws. Each law is unique in certain respects, whether it be having explicit protections for off-duty marijuana use or restrictions on drug testing, so multistate employers must have a firm grasp of them.

2. Communicate Organization's Position on Recreational Marijuana

Once you determine the compliance requirements under applicable federal and state laws, consider updating or implementing policies that address marijuana use.

Whatever your company's stance regarding marijuana use, its expectations should be communicated clearly to employees so that they may make knowledgeable choices regarding their workplace behavior.

Take the following steps to communicate your position by:

• Adopting a policy that prohibits employees from using or being under the influence of marijuana and other illegal drugs in the workplace to send a clear message;
• Determining whether to adopt as a drug testing policy as a separate program or integrate it into one drug-free workplace policy;
• Identifying behavior (e.g., use, possession) that would constitute misconduct resulting in discipline, including termination; and
• Communicating drug policies to employees at the start of employment and at least annually.

3. Train Supervisors

Since supervisors are often on the frontlines, train them on all policies and procedures regarding marijuana use including those relating to testing and documenting a reasonable suspicion of an employee's marijuana use.

Reasonable suspicion should be based on facts and direct observation, such as observing drug use, witnessing erratic behavior at work or seeing evidence that drug use contributed to a workplace accident.

Train supervisors on these signs of marijuana use and impairment as well as how to properly document a determination of reasonable suspicion. Also be sure to train supervisors on all disciplinary measures and how to apply and enforce them consistently.

4. Consider Issues Relating to Drug Testing

In determining whether to drug test job applicants and/or employees, there are several issues to consider, including legal and regulatory compliance requirements, organizational goals and industry standards.

Currently, federal law does not prohibit employers from testing employees and job applicants who are offered a position for current illegal drug use and alcohol impairment. However, several states limit the scope of drug and alcohol testing programs and provide criteria that any employer must meet before testing for marijuana (e.g., reasonable suspicion of a current employee's impairment).

Also, any drug and alcohol testing program and subsequent action by an employer based on test results must be implemented in compliance with the ADA, collective bargaining agreements, and other federal, state and local laws that protect workers from discrimination or privacy violations.

But given the changing legal and social landscape, is marijuana testing still necessary at all? If working in public safety, construction or healthcare, or with sensitive populations, drug testing may be encouraged or legally required. For other positions, though, make sure that the testing is job-related and consistent with a business need.

If testing, provide advance notice of policies and procedures in an employee handbook. And remember to review relevant laws regarding drug testing procedures, as some - including New York City and Nevada - prohibit testing job applicants for marijuana with exceptions.

If your company does drug test current employees, in addition to following applicable state and local laws, you should implement a testing policy that addresses certain issues, including:

• The purpose and parameters of the testing;
• How and when testing will be conducted (e.g., post-accident, reasonable suspicion);
• The consequences of not complying with the policy and of failing a drug test; and
• The procedures to protect the confidentiality of test results and the privacy of employees and job applicants.

5. Determine How (or Whether) to Discipline for Marijuana Use

The fact that states are increasingly legalizing recreational marijuana is affecting people's perceptions of the drug and those who use it. While some employers may have to discipline or terminate an employee for marijuana use in accordance with legal, industry or workplace rules, many others are weighing whether to even discipline an employee for marijuana use.

Of course, nondisciplinary measures, such as referral to an employee assistance program, are available. However, use caution when implementing a nondisciplinary measure as the failure to discipline an employee may open an employer up to potential litigation. For example, if the employer had reason to believe that an employee was impaired, but failed to act, it could be liable if an accident results. Also, marijuana use may constitute negligence or professional malpractice under state laws or licensing regulations.

Conclusion

Legalization measures are only likely to increase in the coming years. That makes it more important than ever to keep abreast of state and local laws that might restrict your organization's ability to drug test employees and job applicants alike - and to make sure they don't leave you in a haze as to what's required.