Marijuana: New State Regulations and How They Impact Company Policies

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Medical and Recreational Marijuana

Adult-use recreational marijuana. This phrase has a lot of organizations examining their regulations compliance in many areas across the united states. While Marijuana is a controlled substance, according to the FDA, and the DEA, OSHA and Workers’ Compensation underwriters all support firm and consistent testing and regulation, employers are struggling with how to ensure that their cannabis policy is well-documented and legal. Terminate someone who fails a drug test but who is not under the influence at work in a state where marijuana use, whether medical or otherwise, is legal and you may find your organization facing allegations of discrimination.

Employee On-boarding Procedures

The same laws now cover employee on-boarding especially where employers drug screen as part of their hiring process prior to offering employment. Screen a candidate and deny employment based on a positive result for cannabis in a workforce market where either recreational or medical use is legal and discrimination allegations may follow. All the more reason to thoroughly review these policies and clearly state the organizations stance on use both where it is legal and illegal.

In California, for example, an employer maintains the right to disciple employees even when the use of marijuana is doctor recommended. Termination of an employee based on their use of marijuana, regardless of why they use it, does not violate the laws in this state related to workplace discrimination. Similar to policies that prohibit the use of alcohol during work hours, or appearance for work while under the influence of alcohol, organizations may have a consistent and firm no tolerance policy for marijuana.

Workplace Marijuana Policy

While some businesses, mostly creative businesses such as gaming or mobile app development or businesses that produce, distribute or sell marijuana, have no qualms with workplace marijuana use; There of a significant number of positions and workplaces where marijuana use (or being under the influence of marijuana) at work is inappropriate and even dangerous. Determining what workplace marijuana policy and implementation will look like is foreign territory for most organizations with workers in the eight states (and Washington D.C.) that have legalized marijuana use. However, these newly developed policies may set the precedence for workplace regulation and compliance for many organizations in the future as more states legalize marijuana use in 2018.

It’s important to note however, that no state laws currently force employers to tolerate on-the-job use. While Massachusetts and New York, and a few states, afford protections to registered medical marijuana users that may require employers to see if reasonable accommodations can be made in some circumstances. The majority of states do not require employers to make accommodations even for off-duty marijuana use. As these laws continue to evolve it’s crucial that employers have a clear understanding of the laws in the areas where they engage workers.

Developing Company Policy

Can I fire someone for using Marijuana at work? Can I decide not to hire a candidate because they failed a drug test for Marijuana? Can I allow medical marijuana use, but not recreational use, by my employees when they are off-duty? These are all questions that need to be answered while organizations are developing their own company policies on marijuana. This policy should also include what to do in the case of workplace use or on-the-job intoxication, which employers are not required to tolerate. If alcohol or marijuana use before or during work are not permitted there should be clear language in the company handbook stating these policies and the consequences while ensuring that the organizations policy is in compliance with states regulations.