By Paige McAllister, SPHR, SHRM-SCP, Vice President for Compliance – Affinity HR Group, Inc.
Marijuana is now legal in some form in 35 states and Washington, D.C. with 7 additional states having decriminalized marijuana possession and 2 states legalizing CBD oil use. (You can find the current status of marijuana legality in your state here.) Many experts expect the continued expansion of legalization of various forms.
So, what do you need to know and do as an employer?
Know the laws in your state:
Currently 18 states have legalized medicinal marijuana and 17 states and DC have fully legalized marijuana for medicinal and recreational purposes. Several states also have laws preventing employers from taking employment actions against employees for legal off-duty conduct.
Understand the different uses:
Recreational marijuana can be used by adults (usually 21 years of age or older) in limited amounts as they wish.
Medicinal marijuana requires a prescription from a health care provider due to covered reasons, which vary state-to-state. By definition, an employee who has a prescription for its use has a condition which may be protected under the ADA and ADAAA.
Cannabidiol (or CBD oil) is oil derived from the cannabis plant which is used to relieve a long list of issues including pain and inflammation as well as anxiety and depression, migraines, MS, epilepsy, and Parkinson’s disease. It does not cause mind-altering effects as those seen in marijuana.
To have a better chance of recognizing if an employee is under the influence while at the workplace, you need to become familiar with common tell-tale signs including the stereotypical dilated pupils and odor of marijuana but also:
- distorted sense of time,
- impaired memory,
- impaired coordination,
- difficulty in thinking clearly,
- mood swings,
- hallucinations or delusions,
- fear or anxiety, and/or
- increased appetite.
Various factors including amount consumed, concentration of THC, body weight and metabolism, if anything has been eaten, and general tolerance impact how long these side effects will be observed.
Understand the different testing options and standards:
Marijuana can be detected using saliva, blood, urine, or hair testing methods, each having different detection parameters and timing. Again, factors such as form (i.e., smoke or edible), repeated and regular usage, age, and weight will impact if marijuana is detected and how long it will show up in a person’s system, ranging from 36 hours to 90 days.
Also, CBD oil itself may result in a positive THC drug result even though it does not cause the “high” of marijuana.
Update your pre-employment procedures:
Background checks: You may not be able to consider past marijuana-related criminal convictions once decriminalized. Even in the states where use is still illegal but past convictions are decriminalized, you must disregard any reference to these convictions if they appear on a criminal history report.
Pre-employment drug screening: Unless the position falls under stricter federal regulations (such as DOT), consider the practicality of testing for marijuana after making a conditional offer of employment to a candidate.
- If your state has fully legalized marijuana use, you will be prohibited from taking any action on this result so you may be paying for something you cannot use or enforce. Furthermore, if legal off-duty activities are protected in your state, then you may now have knowledge of an activity which, if you treat them adversely or differently during employment, can create legal exposure for you.
- If medicinal use is legal, a positive result may lead you to ask about medical information to verify the legal use. This could then create ADA / ADAAA exposure as the candidate would have to reveal medical information requiring marijuana as a treatment.
In both these situations, consider removing marijuana drug testing from your pre-hire process to eliminate this exposure. If you do keep it in your process, train anyone involved as to what is and is not allowed and what can and cannot be asked to clarify.
Enforce policies prohibiting the use, possession, and being under the influence at work:
Given the impact on safety and productivity, employers are allowed to take action if an employee shows multiple side effects, especially if involved in a workplace accident. If you suspect an employee is under the influence of marijuana you should
- have another manager confirm multiple side effects being exhibited.
- remove the employee from their workspace, especially if they could cause harm to themselves, others, or property.
- have someone take the employee for a drug test. (Do not let them drive themselves!)
- take proper disciplinary action, including possible termination if the side effects are verified by a positive test.
In states where marijuana is only legal for medical use, if the employee justifies the positive result claiming they have a prescription, verify their prescription card or ask for a note from their health care provider.
Clearly state your expectations before and during employment:
As mentioned before, there is no law requiring employers to allow employees to use, possess, sell, or be under the influence of marijuana while at work. Given the negative impacts to performance and safety, employers can and should take a no-tolerance stance to marijuana as well as alcohol and mind-altering drugs (even if prescribed) in the workplace. Clearly and repeatedly state this expectation and the repercussions for failing to meet this expectation to all applicants, candidates, and employees throughout the hiring process and the employment relationship. Explain the company’s drug testing procedures and disciplinary action, including immediate termination, for failing to meet that expectation.
Stay up-to-date on this constantly evolving area of employment law:
Given the changing regulations, we recommend staying current on the marijuana laws in your state. If you have applicants or employees based in other states, you also need to learn the laws in those states as well.
Consult with your employment attorney or HR consultant before implementing, revising, or enforcing your marijuana / drug testing policy.
Affinity HR Group continues to monitor the subtleties of the different state marijuana laws. Please reach out to us with any questions.