Marijuana Legalization & the Workplace

The ripples of marijuana legalization go far beyond law enforcement and have now entered into the workplace, causing a number of concerns for HR and other organizational leaders. With today’s cultural shift, the odds of hearing talk of gummy equivalents at work are more and more likely.

According to a recent survey by Gallup, two out of every three Americans are now in favor of legalizing marijuana.

With developing legislature and the shifting of popular opinion, the waters concerning policies in the workplace are murky at best. When marijuana laws changed in Massachusetts specifically, employers were very concerned about the impact on their management of their employees. In reality, the effects were minimal – marijuana usage would just fall in line with other drug and alcohol policies. However, this puts a greater magnifying glass on policies in general – those that do not have a current policy need to implement one. For those that do have a policy in place, it has become increasingly important to ensure it is reviewed by an attorney.

CREATING POLICIES

In crafting these policies, including language prohibiting use on company grounds or while operating company equipment or vehicles is a good starting point. Additional language regarding impairment at work should also be considered similarly to that of alcohol or other drugs. Even if an employee is a registered medical marijuana user, as with alcohol, employers never have to tolerate on-the-job use or intoxication. Legally, you will want your attorney to advise you on any situations that may arise.

The case of medical marijuana usage only serves to complicate the issue further. Similar to alcoholism, drug addiction is considered a disability and is afforded some protection under the Americans with Disabilities Act. Employers should be aware of certain protections in place to medically prescribed marijuana users. recently, the Massachusetts Supreme Judicial Court ruled that a new hire who was fired for testing positive for marijuana could bring a disability discrimination claim under state law. The new hire was a registered medical marijuana patient and the employer didn’t discuss potential accommodations in light of their medical status. The court said that “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” As a result, employers should consider having a conversation regarding reasonable accommodations rather than having zero-tolerance policies.

While many companies employ drug testing practices, it can be virtually impossible to distinguish between current or previous use with regards to marijuana. The value behind drug testing as a practice though, remains. According to a study published by C. Zwerling, J. Ryan and E.J. Orav in The Journal of the American Medical Association, “Testing can provide benefits by removing those under the influence who may pose safety risks or hurt productivity. Individuals who test positive for marijuana have 55 percent more industrial accidents, as well as 85 percent more injuries and 75 percent more absenteeism.”

THOSE WHO TEST POSITIVE FOR MARIJUANA HAVE:

IS THERE SUCH THING AS ZERO-TOLERANCE ANYMORE?

Companies that require drug testing during the hiring process or as a stipulation of continued employment may struggle in adhering to a zero-tolerance policy.  This is because an employee could be tested at work on a Monday morning and not be impaired but still return positive results for usage. Marijuana testing practices are far from accurate in determining exactly when a person was intoxicated. If this scenario occurred under a company’s zero-tolerance policy, the employer would then need to terminate the aforementioned employee even though they showed no signs of impairment, regardless of their value to the company.

Similarly, zero-tolerance policies could have a significant impact on the recruitment and retention of employees. Given the current climate, taking a hard line on this type of policy could likely be a deterrent for new employees, while also potentially disqualifying many valuable current employees. In areas where safety is of greatest concern, such as among construction or electrical workers, a zero-tolerance policy can be better positioned as ultimately in the best interest of the employees. However, depending on your business and availability of new staff, this position could still make it a bit more challenging to attract new candidates.

Once your policy is determined, expectations can be set and subsequently managed. Regardless of the stance you take, be prepared to enforce necessary disciplinary action if the policy is not adhered to.

As with any substance, legal or otherwise, it is important for employers to provide appropriate training to managers to better equip them to recognize and handle impairment and abuse. Similarly, employees should be given access to additional resources that can oftentimes be provided through employee benefit carriers like Employee Assistance Programs, Health Advocate, and other substance abuse services. Reiterating these resources and their availability in the employee handbook gives employees the ability to become self-sufficient in seeking support if they so need.

The bottom line is that as these laws continue to evolve, employers should engage legal counsel to review their policies to ensure they are current and compliant, but also use the exercise as an opportunity to determine if the policy is in line with the organization’s philosophy as a whole. While zero-tolerance policies are understandable in many workplaces, perhaps reasonable accommodations paired with sufficient support for both managers and employees to engage in constructive conversation regarding drugs and alcohol usage is also a viable option.