Marijuana's Legal, Now What?

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Just a few years ago, cannabis was lumped into the illegal drug category along with heroin, cocaine, meth and plenty of other dangerous, addictive and impairing substances. It went without saying, marijuana did not belong in the workplace. Today, the issue isn’t as cut and dry. Twenty-three states and the District of Columbia have now legalized marijuana — at least for medical use. Alaska, Washington, Oregon and Colorado allow for the plant’s recreational use as well. So how should corporate drug policies respond to this brave new world?

Medical Marijuana

In states where marijuana is only legal for medical applications employers can expect their workers to supply a note or prescription from their doctor upon failure of a routine drug test. However, even if someone has a doctor’s prescription for cannabis, that doesn’t mean they can use it whenever they want. In nearly all cases, marijuana still does not have a place on the job. The drug is commonly known to impair judgment, diminish fine motor skills and slow cognitive function — all of which are counterproductive and/or dangerous on the job. Though employers are not allowed to discriminate against medical marijuana users in states where it’s legal (with a valid reference from a doctor), in most instances they are allowed to take disciplinary actions against workers who are found to be impaired while on the job. Though employers cannot be expected to allow their employees to work under the influence, they are obligated to accommodate the underlying medical condition for which cannabis is a treatment. For instance, if a staff member is dealing with a real medical condition while in the shop and needs to smoke marijuana to control the symptoms, it’s probably best just to send them home for the day. Employees can be expected to be forthcoming with a boss or manager about the specifics of their situation so the company can best work with their medical needs.

In medical marijuana states, employers should make it clear in the personal conduct sections of their corporate policy literature what the consequences of on-the-job impairment will be and what specific violations may lead to dismissal. Also, it’s a good idea to continue regular drug testing to ensure those without medical clearance for marijuana continue to abstain. Of course, it’s important that any employee’s medical information remain private.

Companies that receive federal funding or are subject to government oversight or regulations fall under the Drug-Free Workplace Act of 1988, which lists marijuana as a prohibited substance. In this instance, even if pot is legal in the company’s state of residence, the federal laws labeling marijuana as illegal take precedence.

Recreational Pot

In Alaska, Washington, Oregon and Colorado, where marijuana’s recreational use is also allowed, employers should still adopt a no-tolerance policy during work hours. That includes smoking a bowl during lunch or taking a smoke break a safe distance from the building. It would seem to go without saying, being stoned at work is a no-no, even if being stoned isn’t illegal (same goes for showing up drunk). Still, it’s prudent for companies to explicitly describe their conduct expectations in writing. If an incident should occur, both parties involved have a document to refer to.

Legal Defense

As legal marijuana continues to become more and more prevalent across the country, it may be tempting for some employers to relax their drug testing standards. However, there is substantial evidence of marijuana’s detrimental affects related to the workplace. For instance, according to research done by Colombia University, drivers under the influence of marijuana were 80 percent more likely to be involved in a fatal car accident. On a job site involving heavy machinery, harmful chemicals or other potential hazards, pot use introduces an unacceptable level of risk. Users also tend to be less productive, more likely to be sick or injured and are more frequently absent.

So, how does a company defend itself against drug impairment in the shop or potential lawsuits from medical marijuana users? It all starts with a clear and comprehensive written drug policy that every employee must read and sign. When a new employee is hired, a manager or HR representative should go over the policy in detail. All employees should be personally notified whenever any changes are made to the policy.

It’s a good idea to have your policies gone over by a lawyer to ensure they comply with every applicable state and federal regulation. Unfortunately, due to the ever-changing nature of marijuana laws, having your policies reviewed by a lawyer should be done at least yearly. Companies are sued every day by current or former employees claiming their medical marijuana rights have been violated, so having a ironclad drug policy is cheap insurance.

Managers and those who work in human resources should be thoroughly trained in the company’s specific policies and the basics of local marijuana statutes. They should also know how to handle a variety of situations they could potentially encounter, such as what to do if an employee is found to be under the influence while at work or what to say if an employee asks for permission to take a marijuana smoke break.

The Changing Landscape

Bills to legalize medical marijuana on the federal level have already been introduced in both houses of congress. Polls show more than 80 percent of Americans support the availability of cannabis for medical purposes. There’s no doubt, in the coming years more states will legalize pot, of both the medical and recreational varieties. As such, it’s important for companies to take a proactive approach to tackling this sensitive and potentially divisive issue. Start with an in depth review of your company’s current drug policy and consult with a lawyer about what changes should be made. Then make sure to inform your employees about any alterations.

As Representative Steve Cohen (D-Tennessee) recently said, “One day there will be passage (of a national marijuana law)…the times they are a change-in’.”

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