Marijuana, clearing away (at least some of) the confusion!
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Marijuana, clearing away (at least some of) the confusion!

Marijuana, clearing away (at least some of) the confusion!

Karen DiGioia, September 20th, 2019

Marijuana. Possession and use are federally illegal, yet, at the time of my writing, 33 states – including states of Pennsylvania, Maryland, and Delaware – plus the District of Columbia, have comprehensive medical marijuana programs. Eleven states plus the District of Columbia allow recreational AND medical marijuana use and many other states are currently considering legalization of recreational weed. State laws continue to change quickly. By the time you are reading this article some of these numbers may very well have changed.

If I’m being totally honest, simply writing about this topic makes me a bit nervous. The rapidly changing landscape leaves many employers feeling baffled and confused about what they can and cannot do when it comes to marijuana in the workplace. Even many HR professionals, if they are being truthful, admit to finding it perplexing. While there is much about this topic that is still hazy (and I don’t claim to have all the answers), I’m going to focus on what currently is clear and try to eliminate some of the confusion. To keep things simpler, I will focus on the state of marijuana laws in Pennsylvania, Delaware and Maryland.

We know that, currently, all three states have medical marijuana programs and these programs make it legal for a licensed individual to buy, possess, and use medically prescribed marijuana, just like it’s legal to buy, possess, and use other prescribed medication. The primary question many employers have is “Does that mean that it’s also OK for licensed individuals to use medical marijuana in the workplace or to come to work high?” I have good news for you – this is one area where the current answer is very clearly “No!” (Did I just hear a collective sigh of relief?)

As an employer, to protect yourself and your organization, you can and should take the following steps:

  • Prohibit marijuana use while on the job.

Just like (I hope) you would prohibit an employee from keeping a bottle of vodka in their desk drawer or a bottle of wine in the office fridge and taking a sip from said bottle over the course of the work day, you can and should prohibit employees from using medical (or non-medical) marijuana in the office. (I’m not even going to touch here on the beer fridge trend going on in some companies today).

  • Understand that, with some limited exceptions, it is not OK to refuse to hire or to fire or to discipline an employee strictly for the use of medical marijuana.

The key word in the statement above is “strictly.” As we will talk about in a moment, it’s fine to deal with impairment, if it occurs, but it’s not OK to take action just because an employee has a license or uses medical marijuana. A number of states, including Pennsylvania and Delaware, have employee protection laws in place that make it unlawful to fire or discipline an employee strictly because that employee is licensed to use medical marijuana or to fire or to discipline a licensed employee who tests positive for marijuana use in a drug test unless failing to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or regulation.

  • If an employee comes to work impaired, whether it’s due to marijuana use (medical or otherwise), alcohol use, or use of prescribed (or unprescribed) medication, deal with the impairment as a performance issue, rather than focusing on the use of the substance.

Again, just as you would deal with an employee who had four beers for breakfast and came to work drunk, the issue is not the use of alcohol. The issue is on-the-job impairment. Deal with marijuana the same way. Document the performance deficit in detail, focusing on the expected standards of performance. If possible, have signed statements from others who witnessed the behavior. If your policy is to test when impairment is suspected, drive the employee to the drug-testing facility (please, do not have them driving themselves if you suspect that they are impaired). Meet with your employee, as you would with any other performance issue. Talk about the performance, the behavior and the related consequences. Consistently follow the policies that you have in place regarding both performance issues and substance use/abuse (more on that below).

  • Clearly communicate company policy regarding workplace use of marijuana and other substances, the consequence of non-compliance and the process that will be followed if non-compliance is suspected. Enforce your policy consistently.

As we have already recognized, this is a confusing subject – for employers and employees alike. Don’t assume that your employees understand what’s OK and what isn’t. Employees may wrongly assume that, if they can legally use marijuana, they can do so at work without consequences. It is still OK for employers to implement drug-free workplace policies. Adopt a written policy regarding substance use and communicate it to your employees. Ensure that your policy prohibits both marijuana use in the workplace and impairment in the workplace and during work time. Ensure that you and your managers know how to identify marijuana impairment.

So far, we have talked about what is clear. Now, I am going to move on to an area that is less so: Testing. Drug testing, especially pre-employment testing for drug use that includes marijuana is a practice that, for many employers, is coming more and more into question. While employees covered by Department of Transportation rules like those in safety-sensitive jobs like trucking, airline, and mass-transit workers must be tested for alcohol and drug use, what about organizations where testing is not mandated?

Some limited locations, currently Nevada and New York City, have passed laws that will go into effect in 2020 to make it unlawful to test job applicants for marijuana use. While that is currently the exception and not the rule, many employers are moving away from pre-employment drug testing, quite honestly, on the grounds that it screens out too many otherwise qualified candidates. In today’s highly competitive labor market, some employers are deciding that it just doesn’t make sense anymore. In states that have legalized recreational marijuana, the practice of making employment decisions based on tests that reveal marijuana use has become even murkier.

Add to that, the fact that testing for marijuana use is much different than testing for alcohol. Alcohol tests clearly show impairment and recent use. Marijuana testing is less clear. There is no common level of THC that indicates that a person is impaired, and THC can show up in a test as many as 30 days or more after use. This means that a test can come back positive for THC but this doesn’t mean that the employee was high at the time of the test. As a practice, the current shift, especially for positions where safety is not a concern (or, obviously, where testing is not mandated), is to discontinue pre-employment testing and utilize testing only when an employee appears impaired or when an accident has occurred. Many organizations are also shifting, whenever possible, to tests that measure performance impairment rather than presence of THC in the employee’s system.

If your practice has been to conduct pre-employment tests, it is a good time to give careful consideration to why you do it and to ensure that you still feel that it is important. If you do decide to continue testing, review the type of test that you use and keep yourself updated on the legal state of this topic.

I am hopeful that this article has helped to clear away some of the confusion around the topic of marijuana in the workplace (I am an optimist by nature!) However, it’s important to recognize that there are still murky areas and evolution of this topic will continue. What is true today may not be true tomorrow. While we don’t know what the future holds, we do know that the topic will continue to shift in ways that will impact the workplace. Your best bet is to stay on top of the subject.

For questions or more information pertaining to this topic – or any other HR topics, please contact Karen DiGioia at karen@mostellerhr.com or info@mostellerhr.com.