Nearly 75% of the country has legalized cannabis to some extent – either medical, recreational, or both – which begs the question, how are employers responding to the rapidly changing laws in their regions?
As of election day, November 3rd, 2020, a total of 36 states, District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have approved comprehensive medical cannabis programs. Out of those, 15 states have legalized adult-use marijuana. Recreational is even legal in our nation’s capital, Washington D.C., where you will find a robust legal market.
Despite all of that, marijuana is still federally illegal. This presents many unique challenges for employers who maintain drug testing policies and have concerns about productivity and workplace safety, as well as issues for employees who may be denied employed for cannabis use when they are responsible users and are otherwise, completely qualified.
How are these issues being resolved? Is common ground between employees and employers achievable?
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Medical use vs recreational use
When it comes to denying employment based on cannabis use, a very important distinction is whether the patient uses it recreationally or medicinally. Outlined under state laws, marijuana can be prescribed for a variety of preapproved conditions. If someone is using marijuana for panic attacks, for example, this could warrant random, all-day availability and use.
It’s imperative that employers know if any of their employees are medical marijuana patients; and whether there are state laws protecting their usage and shielding them from legal and employment repercussions. Firing someone for using legally prescribed medication is grounds for a lawsuit.
“A company needs to be careful when disciplining medical marijuana users,” said Reischer. “Several states have specific laws protecting medical cannabis patients from employment discrimination. Typically, employers can require drug testing before employment and at random times, so long as there is no discrimination against medical marijuana users [who] are legally allowed cannabis for medicinal reasons.”
In recreational markets, many employees would argue that cannabis use when they’re off the clock should be permitted, adding that, as long as workplace performance is not affected, it’s none of their employers’ business what they do in their free time, comparing it to having a drink after work. Valid point.
When it comes to employee cannabis consumption, one of the most common concerns among employers is safety, especially with jobs that involve driving, heavy machinery, or anything where there will be physical contact between the employee and a customer (i.e. physical therapist, nurse, doctor, chiropractor, masseuse, etc.).
Another issue in this same vein, is the disbursement of workers’ compensation and how that would be impacted by employee cannabis use. In Wisconsin, for example, if an employee is injured in the workplace while intoxicated under any controlled substance, including cannabis and other prescription drugs, the employer can then reduce the workers’ comp indemnity benefits by 15%, with a maximum allowed reduction of $15,000. In Michigan, workplace injuries sustained while intoxicated are not covered by worker’s comp at all.
“Employers must understand their rights and duties when it comes to drug testing because state laws are evolving,” said David Reischer, attorney and CEO of LegalAdvice.com. “Marijuana is still federally illegal, and employers generally are allowed to have a drug-free workplace and to enforce zero-tolerance policies.”
In an interesting twist, a study published in the Health Economics journal found that in states with medical cannabis programs, there was a 7% decrease in workers’ compensation claims. We’re not sure why this noticeable drop occurred, but it’s possible that instead of claiming workers’ comp, employees chose to self-medicate and treat their work-related ailments with marijuana.
This is an interesting topic and, obviously, 100% at the employers’ discretion. And while you might expect the answer to be a clear-cut “no”, many employers actually allow their workers to consume cannabis while on breaks, if it helps foster creativity and productivity.
According Steve Nelson Jr., owner of Denver cannabis club iBAKE, he finds that allowing on-site consumption helps build rapport with his customers, while establishing a relaxing environment for his employees.
“We’ve noticed that when we hire employees that do not smoke, our members get a little worried [and wonder] why,” Nelson said. “We also have found that, for most employees, it does not affect their work. It’s not for all businesses or for all employees,” he said. “[Employers] need to take careful consideration to what … your employee will be doing. Some tasks are not OK to perform while high.”
Because it’s neighboring California, the largest cannabis market in the world, and home to many west coast transplants, people have had their eye on Arizona for the last few years. This month, recreational marijuana was legalized in the Grand Canyon state, and overall, there seems to be a traditional approach to workplace cannabis consumption.
“It will be treated in Arizona now as any other legal drug,” said attorney Bob St. Clair. “Similar say to alcohol or cold medicine.” St. Clair said he expects employers will take a similar approach to their employees using recreational marijuana.
“Employer workplace rules will not primarily change as a result of the recreational aspect,” he said. Prop 207 gives employers the right to have a drug-free workplace. An employer isn’t required to allow or accommodate use, consumption or possession at work. “Moderate use makes more sense than anything else,” St. Clair said. “If you show up at work and you’re obviously high, you’re going to get sent home just like if you show up at work and you’re obviously intoxicated.”
Some employers aren’t swayed at all and are maintaining a zero-tolerance policy against cannabis use, whether on or off the clock. At one of these jobs, if the employee fails a random drug test they will either be disciplined or fired.
“As an employer, I have no plans to relax any drug policies in and around my work environment as we move forward in this new era of cannabis tolerance and legality,” said Abtin Hashemian, owner of a Los Angeles-based Subway franchise. “[Against] the backdrop of legalization in California, I’ve had to terminate employment for several of our employees due to performance-related issues stemming from cannabis intoxication while on the clock.”
Others are taking a more personalized approach and only penalizing employees for cannabis use when it’s clear their performance at work has declined. According to Derek Riedle, owner of cannabis lifestyle company Civilized, we can safely look at this like the banking dilemma. There are ways around it, but for the most part, employers want to play it safe and keep their workplace drug policies as strict as possible. In some cases, it’s better for insurance reasons and the bottom line.
“We’re seeing more and more employers revisit their workplace rules around cannabis, but because it remains illegal at a federal level in the U.S., most companies still have a zero-tolerance policy,” Riedle said. “It’s more common to see employers loosen up their regulations for patients with a valid medical cannabis card, but even that is not guaranteed.”
Tips for employees
As a pot smoking worker, you will have to accept the fact that even if marijuana use is legal in your state, there are some jobs you just won’t be able to get without passing a drug test. Other legal substances, alcohol for example, can also be prohibited. In some regions, even cigarettes can be against workplace policy. For example, many fire departments in California will not hire cigarette smokers because it can impact their health and performance on the job.
If you work somewhere that doesn’t drug test, you’re pretty much golden as long as productivity and performance remain up to par. When it comes to medical patients, employees should consider consulting with an attorney to determine what their rights are and how to best proceed. If possible, find employers who are cannabis-friendly, so you’re not left high and dry by a surprise drug test and termination.
Whether you’re an employee or an employer, the cannabis-workplace relationship can be complicated. There is no one-size-fits-all approach, but the good news is that more and more states are implementing laws to protect cannabis uses from workplace discrimination. On the other side of the coin, many employers are finding that off-the-clock cannabis consumption has no negative impact on workplace performance, and as a result, are changing up their company drug policies for the better.
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