While the federal government continues to hold firm, state after state experiments with relaxing or eliminating criminal penalties for marijuana use. Whether your state allows recreational use, medical use, both, or neither, employers are re-evaluating their company drug policies in response.
Reaching a workable company drug policy can feel like a balancing act. You need to prevent workers from working under the influence, but you also need to avoid unnecessary battles over drug policy.
Here, we explore some of the major recent changes in marijuana laws, consider how they affect company drug policies, and offer factors to consider in the process.
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(Remember: While this article provides a general overview, it is not a substitute for legal advice. Address specific legal questions to an attorney who is licensed to practice law in your area.)
Marijuana and Employer Drug Policies: What's Changing and Why It Matters
Over the past few decades, employers have increasingly embraced "zero tolerance" workplace drug policies. While these vary in scope and methods, their core message is the same: Having any substances in your body or in your possession is grounds for strict discipline.
By the beginning of 2018, however, the landscape changed, and it continues to change. Eight states and the District of Columbia allow adults to use marijuana recreationally, and 28 states allow it for medical purposes. And while some state laws, like Maine's, specifically state the law does not require employers to accommodate use or possession of marijuana in the workplace, employers are still trying to determine whether the zero-tolerance approach to marijuana is in their best interests.
Factors to Consider in Crafting a Company Drug Policy
When creating or revising drug policies in the face of changing marijuana law, employers have several factors to consider, including:
- What to allow (or ban). Addressing both recreational and medicinal marijuana use can help employers craft a drug policy that offers greater flexibility, particularly in states that are still implementing their new laws or where the state's political "temperature" appears to be swinging in favor of medicinal or recreational marijuana.
- What does the company mean by "illegal"? Twenty years ago, prohibiting "illegal" drugs -- whether or not a zero-tolerance response was chosen -- covered marijuana in nearly every locale. Today, however, employers may need to specify whether they intend to view marijuana as legal or illegal under state or federal law. Choosing one definition can help clarify the policy.
- What does the company mean by "impaired"? Focusing solely on the (il)legal nature of a substance may not be enough to prevent employees from trying to work while impaired. Addressing both the substance and the impairment can help create a policy that is responsive to a wide range of situations. Considering fitness-for-duty requirements may be useful in certain positions.
- What does a safe response look like? While many employers focus on penalties, an employee who is impaired in the moment has a medical need to get home (or to treatment) safely. A policy that provides guidance can help managers more effectively address a problem.
- What other laws are in play? For example, Maine's recreational marijuana use law allows employers to ban the drug's use or possession at work, but it prohibits employers from refusing to hire "solely" because of their marijuana use outside work -- a rule that might conflict with some zero-tolerance policies. Rules about drug testing may also affect the final policy.
Balancing these factors can be tricky. Fortunately, help is available.
Where to Turn for Help
The field of marijuana law is relatively new, and many questions remain unanswered. An attorney who specializes in helping employers answer questions about drugs in the workplace is an essential resource for specific guidance.