Navigating Changing Marijuana Legislation: A Guide for Employers

With the increasing legalization of recreational marijuana across various states, employers need to proactively prepare for the changes and their implications on the workplace. As more states allow adults to legally purchase and possess marijuana, it's essential for employers to review and update their workplace policies to ensure compliance and maintain a safe work environment.

Despite legalization, employers can still prohibit marijuana use that leads to impairment at work, akin to alcohol restrictions. Recent legal decisions, such as White v. Timken Gears & Servs., Inc. in Illinois, reinforce that a positive drug test for marijuana while working, even if used recreationally off-duty, can justify termination if it violates a reasonable and consistently applied workplace policy. This underscores the importance of clear, fair, and legally sound drug and alcohol policies to ensure workplace safety.

• The first step is to reevaluate your drug testing protocols. Ensure they align with both state and federal regulations, particularly if your industry is governed by specific mandates, such as those from the Department of Transportation. Consider your agreements with insurance carriers, as marijuana testing might be a condition of coverage or discounts.
• Testing for marijuana presents unique challenges due to the limitations of current testing methods. Talk with your testing laboratory to understand the differences between qualitative and quantitative tests and determine which best supports your workplace policies.
• Evaluate whether to implement second chance agreements for employees who test positive for cannabis. Additionally, consider providing access to substance abuse programs. These measures can help manage employees who might struggle with marijuana use while offering them a chance to comply with workplace policies.
• Update your policies in your employee handbook, workers’ compensation policies, and other relevant documents to clearly state that while marijuana may be legal, it is prohibited in the workplace. Clearly outline that possession or use of cannabis at the worksite is forbidden and that employees are not permitted to use cannabis during lunch or other breaks. Specify the consequences of violating these policies to ensure there are no ambiguities.
• Hold meetings to communicate the company’s stance and expectations regarding marijuana use to all employees. Transparency is key; ensure employees understand the policies, the reasons behind them, and the consequences of non-compliance. Clear communication helps in setting the right expectations and reduces misunderstandings.
• Conduct comprehensive training sessions for HR professionals, managers, and supervisors on the company’s policies regarding marijuana use. Ensure that all managerial staff understand the testing protocols and disciplinary policies. Training should also cover how to handle conversations with employees about marijuana use, ensuring consistency and sensitivity. Equip your managers with the skills to recognize signs of impairment at work. Understanding how to identify and address employees who might be under the influence of cannabis is crucial for maintaining workplace safety. Provide clear guidelines on the steps to take if impairment is suspected. Check out our trainings here!

The increasing state legalization of recreational marijuana marks a significant change for employers. By proactively updating your drug testing protocols, policies, training programs, and communication strategies, you can effectively manage the impact of this new legislation on your workplace. Staying informed and prepared will help you navigate this evolving landscape while ensuring a safe and compliant work environment.

Sources:

Federal court rules employer did not violate Illinois privacy law for firing worker testing positive for cannabis. (2024, July 30). JD Supra. https://www.jdsupra.com/legalnews/federal-court-rules-employer-did-not-4849901/

Fisher Phillips. (n.d.). Ohio employers should follow these 6 steps now that recreational cannabis sales have begun. https://www.fisherphillips.com/en/news-insights/ohio-employers-6-steps-recreational-cannabis-sales.html