Currently, 25 states and the District of Columbia have laws legalizing marijuana in some form- medically, recreationally, or in some cases, both. These jurisdictions provide marijuana users with varying levels of protection from employment discrimination. Despite this, marijuana is still considered an illegal substance under federal law through the Controlled Substances Act (CSA).
This federal precedent provides employers with broad rights to take action against employees who use marijuana. Because marijuana use creates risks to employers and their duty to maintain safe workplaces, the laws surrounding marijuana use are important for employers to understand and consider in order to shape their workplace policies.
The legalization of marijuana has become an HR issue, and needs careful consideration in the workplace. So how are organizations in states where marijuana is legalized, recreationally and/or medically, dealing with the complications that come with the laws surrounding marijuana legalization?
The majority of states where marijuana is legalized have specific exceptions that allow employers to prohibit marijuana use by employees while working. As a result, 94-95% of organizations in these states have a formal, written substance use policy in place. A majority of these are zero-tolerance policies. These policies are most commonly communicated through employee handbooks and manuals (84% of the time) and new employee orientation (63% of the time), and least commonly through email (21% of the time) and word of mouth (11% of the time). It is evident that it is important to formally and clearly convey the policies surrounding marijuana use to employees.
Ensuring that employees understand the policies surrounding their marijuana use is critical because it reduces the risk of employers being subject to lawsuits or litigation. First and foremost is the need for a clearly articulated policy, but there are several further steps employers can take to avoid legal action being taken against them. While employers are not required to allow marijuana use in the workplace, they should consider policies that don’t prohibit employees from using it on their own time.
With 86% of Americans in support of medical marijuana, public opinion clearly supports its use, and overly stringent policies could cause employees to seek employment elsewhere. In addition, should employers find the need to take adverse action, they should document the reasons for doing so to avoid a pretext argument. Finally, as the legal landscape is always changing, employers should work with legal counsel to monitor these changes and adjust policies accordingly.
In conclusion, employers in states where marijuana has been legalized recreationally and/or medically need to pay very close attention to the legal landscape surrounding marijuana use and ensure that they are developing clear drug use policies for their workplace. A well-communicated policy surrounding the use of marijuana on the job is crucial because it lowers the risk of litigation from employees as a result of adverse action being taken against them for the use of marijuana.
Adopting a proactive approach in developing and communicating drug use policy will greatly minimize incidents and make it easier for employers to ensure a safe workplace environment. It is, however, important to also know the appropriate reactionary measures to take should problems arise surrounding the use of marijuana in the workplace. For this, having legal counsel readily available is a good idea.
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Tom DiSilva has been providing professional human resource services for over 30 years. As the CEO of Navigate PEO, he actively partners with organizations of all sizes in the Greater New England area and across the country to help their businesses grow. He has expertise in HR and Labor Management, offering guidance and support for key areas of business such as negotiations, operations management, employee coaching, and employee benefits design.