Four New England states now allow medical and recreational use of marijuana, meaning local businesses need to review their current drug testing and substance use policies to ensure they are compliant with federal and state laws.
With Connecticut legalizing recreational marijuana in June – and Maine, Massachusetts, and Vermont laws already in place – only New Hampshire and Rhode Island remain barriers to legalization. Provisions in Connecticut law that affect employers will come into effect on July 1, 2022.
Overall, employers walk a fine line when deciding their internal policies. They must comply with state law, but according to federal law, the use of marijuana is illegal. As a Schedule I substance, it is not even recognized as medical treatment under federal law.
Companies also need to consider what is fair and reasonable for their workforce. For employers who operate in states where marijuana is legal for both medical and recreational use, they should ensure that they do not discriminate against employees who use the substance legally outside of their work obligations. .
In states where marijuana is legal for recreational use, employers often approach cannabis use the same way as alcohol use. You are not required to allow use in the workplace, and if employees choose to use it in their free time, the impact of the substance on job performance will need to be considered.
Federal laws on the use of marijuana in the workplace
Although marijuana is illegal at the federal level, the federal government generally does not prosecute those who use or distribute it as long as they are in compliance with state law. However, in âdrug-freeâ workplaces, federal law still requires employees to test negative for the use of marijuana as well as other restricted substances. In addition, the government continues to treat marijuana as an illegal drug for the purposes of surveillance, distribution and protection under the Federal Disability Act.
Is zero tolerance the way to go?
If an employee is so impaired by alcohol, prescription drugs, or recreational marijuana as to pose a safety concern, the employer has a duty to intervene. This is why many employers have a zero tolerance policy when it comes to consuming alcohol during working hours. This is also the rationale for applying a zero tolerance policy with regard to the use of marijuana and other cannabis products.
But that doesn’t mean employers can automatically enforce zero tolerance. This is especially true if a state in which your business operates has enacted specific legislation to protect an individual’s right to use marijuana for medical treatment.
A bill pending in Massachusetts would protect the after-hours use of legal recreational cannabis products. A similar provision will come into effect next year under the new Connecticut law.
Beyond legal obligations, employers should also consider employee sentiment and morale. There are likely people in the workforce who support cannabis use. If it hurts morale or limits the pool of qualified applicants, a zero tolerance policy can do more harm than good.
Policies to review
Businesses and organizations should pay particular attention to their policies regarding drug testing, workplace safety, medical accommodations, and after-hours use.
Drug testing can include pre-employment screening as well as ongoing tests, which can be randomized. However, one of the most difficult things to determine with cannabis use is when the substance was ingested. If the employee is in a state where recreational use is legal or is using it for medical treatment, the test may appear to be discriminatory.
Some employers choose to give employees advance notice when testing takes place. Others warn employees that recreational use may create a positive outcome, which would then be handled according to policy.
When creating workplace safety policies, it is important to have a basis for any rule. Some studies have shown that employees who tested positive for cannabis use had more injuries, accidents at work, and absenteeism than those who tested negative. Marijuana use has also been linked to decreased productivity, higher turnover, more lawsuits, and more claims for unemployment and workers compensation. Additionally, although cannabis use is often compared to alcohol use, keep in mind that impairment resulting from marijuana use is much more difficult to accurately assess.
- Accommodation for medical marijuana patients
When cannabis is used for a medical problem, employers should carefully consider their obligations to their employees. In recent decisions, the courts have sided with penalized workers and employers who discriminate against employees who legally consume cannabis.
When creating policies, it is essential that employers also consider the use of other cannabis products such as CBD oil, the non-psychoactive chemical component of cannabis that is believed to have medicinal value.
Unfortunately, these products can cause a positive drug test result. Even if the person who used CBD oil or a similar product complied with state law and was never tampered with, that person’s test results could be a problem.