First and foremost, in states with no legalization of marijuana which remain under only the federal laws, the question of “what to do?” is fairly simple: acknowledge that marijuana is an illegal drug and is prohibited in order to avoid claims and liabilities over the risk of impairment. In such cases, change is not necessary—for now. In other cases…
It may be time for employers to review existing zero-tolerance, one-size-fits-all policies for a complex issue, especially organizations running in multiple states: it’s safest to assume modifications for each state.
Here are some suggestions or considerations from and for Massachusetts:
- Top Advice: Seek local legal counsel regarding the shifting landscape of marijuana and employment law; ask specific questions to put correct and comprehensive policies in place. It’s better to be proactive, preventative, and prepared than caught off-guard.
- Zero-Tolerance: If enforcing a zero-tolerance policy to not hire (or to terminate) individuals who partake in marijuana use, make clear all tests will screen for marijuana and clearly define it as an illegal substance—otherwise some employees may fail to understand it to be state-sanctioned but federally illegal. Clearly state that such conduct will result in discipline or termination.
- Employee Handbook: Review and update all relevant Employee Handbook sections with any changes to policy and testing regarding state policy. Make sure it contains one complete section pertaining specifically to marijuana and including both the issue of impairment and any prohibited conduct, with the resulting consequences.
- Non-Safety-Sensitive Positions: In non-safety-sensitive positions, consider loosening testing policies for certain positions as recreational use increases in the “talent pool” of potential employees. Employers may consider eliminating standardized testing policies (such as pre-employment drug screening) and opt instead for testing upon reasonable suspicion* that the employee is impaired on the job. Be aware of any additional regulations for certain highly-regulated industries, such as federal, health-care and transportation.
- Acknowledgement Forms: For medical use, employers can create Acknowledgement Forms tailored to state law, acknowledging the medicinal use as genuine while agreeing not to use onsite or perform work while impaired; however strong it may be in court, it proves a clear attempt to curb workplace safety risks.
- Alcohol-Equivalent Narrative: When permitting marijuana use for off-work hours, treat it as alcohol would be—adopt a policy which prohibits working while “under the influence of alcohol and/or drugs that adversely affect the employee’s ability to safetly perform [their] job duties.”
- Drug-Free Workplace Policy (DFWP): Establish a DFWP with requirements and expectations for substance use and impairment in the workplace. Focusing on impairment over marijuana use itself will minimize the likelihood of trouble with lawful use in legalized states. Instruct employees to report any medically-related marijuana use to begin the interactive process of determining reasonable accommodations.
- Testing: Any testing should be under carefully-drafted and consistently-practiced policy under trusted legal guidance. In Massachusetts, consider employees’ job duties and the employer’s interests, as MA permits random testing only in limited, specific circumstances (such as safety-sensitive positions, post-accidents, and cases of probable cause).
- Multi-state Employers: Update Employee Handbooks and emphasize any changes made to policies regarding multiple states, and whether standardized testing will be continued or if more state-specific policies for recreational/medicinal marijuana will be embraced.
- Medical Costs: In some cases, employers have been required to pay employees’ costs for medical marijuana prescriptions, as in cases of workers’ compensation, same as with other prescriptions such as opiates. It may be worth covering in the Employee Handbook and related policy.
- Be Very Clear: Policies should always remain clear that on-the-clock marijuana use or that any work conducted while under the influence is against company policy.
Advice to Employers
“Given the high stakes and maze of state and local legislation regarding drugs and drug testing, employers should…
Work closely with counsel to craft drug-testing policies that comply with state and local laws;
Consider state law before implementing pre-employment drug testing or random drug testing in their policies;
Consider what substances to test for, including alcohol and marijuana in states that have legalized some use of the drug;
Be wary of inconsistent administration of drug tests since failure to test in a uniform manner could expose [employers] to claims of discrimination.”
Words by Charles H. Mogan and Christiane Nolton, the HR Executives
*Reasonable suspicion is a lower standard of “proof” than probable cause: facts sufficient enough to lead a “reasonable person” to conclude an employee is impaired on the job, including (as in recent cases) things like social media posts or witnessed physical symptoms of being under the influence. By Rhode Island definition: “reasonable grounds to believe, based on specific aspects of the employee’s job performance and specific contemporaneous documented observation, concerning the employee’s appearance, behavior or speech, that the employee may be under the influence of a controlled substance.” Otherwise, advice is to be wary of testing and aware of state laws to avoid the potential of fines or defending oneself in a discrimination lawsuit.