BY Lindsey Leake

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 marijuana. 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 marijuana at the worksite is forbidden and that employees are not permitted to use marijuana 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 marijuana 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/

NATIONAL DRUG-FREE WORKPLACE ALLIANCE

As the workplace division of Drug Free America Foundation, NDWA’s mission is to be a national leader in the drug-free workplace industry by directly assisting employers and stakeholders, providing drug-free workplace program resources and assistance, and supporting a national coalition of drug-free workplace service providers.

Source:  www.ndwa.org

One of the most pressing issues for businesses in states where marijuana use is legal is determining employee impairment before taking any adverse action. Unlike alcohol, where a simple breathalyzer test can gauge impairment, marijuana’s effects vary significantly based on consumption method, strain, and user tolerance.

Studies have shown that THC—the psychoactive compound in cannabis—and its metabolites can linger in the body long after the “high” has worn off. Recognizing this, many states have enacted laws requiring employers to prove impairment, not just the presence of THC. Traditional drug tests like urinalysis, oral fluid tests, hair tests, and even emerging breath THC tests only indicate prior use, not current impairment.

This means that zero-tolerance policies based solely on the detection of THC metabolites are no longer viable in many states. Instead, employers must place more focus on assessing fitness for duty through reasonable suspicion training for supervisors and consider adopting impairment detection technology.

Given that measuring THC levels cannot be the sole indicator of impairment, new tools have emerged to detect impairment from drug and alcohol use. Advanced impairment detection technologies offer more accurate insights into an employee’s current state of impairment. These devices measure psychological and/or physical indicators, allowing employers to make informed decisions about workplace safety. Leading solutions are portable, scientifically defensible, and provide results within minutes.

However, these technologies alone are not enough. Supervisors play a crucial role in identifying and documenting impairment. Proper training in recognizing the signs of impairment and documenting these observations is essential. Supervisors must be equipped to take appropriate action based on their assessments, ensuring that safety and performance standards are upheld. We here at NDWA can help provide trainings for your supervisors – find out more here.

Employees must understand that they are not exempt from workplace safety regulations regardless of their state’s marijuana laws. Being under the influence at work can endanger themselves and their colleagues, and impact work quality and efficiency. It is the responsibility of employees to ensure their marijuana use doesn’t impair their fitness for duty. They must arrive at work sober and ready to perform.

Advanced impairment detection technology is promising, but isn’t a singular solution. By training supervisors to document regular behavior and performance, businesses can maintain safe and productive work environments.

Source:  NATIONAL DRUG-FREE WORKPLACE ALLIANCE

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 re-evaluate 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 marijuana. 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 marijuana at the worksite is forbidden and that employees are not permitted to use marijuana 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 marijuana 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.

Source: 

• Drug Free Foundation AMERICA, Inc.
• National Drug-Free Workplace Alliance