Growing acceptance of cannabis use in recent years has led to the proliferation of state laws legalizing medical and recreational cannabis consumption, as well as a push for employment protections for off-duty use. Here’s what non-cannabis industry employers need to know about evolving cannabis laws and their impact on the workplace.
As more and more states legalize recreational cannabis use, employers should make some decisions about whether and to what extent they will be guided by federal law, which still classifies cannabis as a Schedule I drug like heroin and cocaine.
Despite the federal status of cannabis, thirty-seven (37) states have now approved medical cannabis use, and eighteen (18) of those states and Washington, D.C., also have approved recreational use. Employers should note, however, that workplace protections vary by state, and some cities have their own rules.
Many of the earlier states to legalize cannabis use, such as California and Colorado, provide few or no job protections for off-duty use. For example, Colorado has a statute prohibiting employers from interfering with employees’ lawful off-duty conduct, but the Colorado high court has said that “lawful activity” is defined by both state and federal law.
Off-duty cannabis use is not protected in Colorado because it is illegal under federal law, the court has held. Newer laws tend to afford more job protections. Some states protect registered medical cannabis patients but not recreational users, while others, such as New Jersey and New York, provide employment protections for both. The trend is growing across the states to grant employment protections for both adult use and medical use.
Also, note that employers can still discipline workers for being high on the job or for bringing cannabis products onto the premises. Even states that have legalized cannabis to some degree may still have state laws that prohibit workplace use or even the presence of cannabis or cannabis-containing products at work.
It is suggested that employers review their policies and practices in light of evolving laws: Will they want to continue to screen applicants? What is their position on off-duty use? At the end of the day, it is expected that employers have these internal discussions and then hopefully memorialize their decisions with updated and cannabis-specific policies.
Cannabis decriminalization affects multiple aspects of the workplace, including recruiting efforts, safety plans, drug-testing policies, and even social outings with clients. Some policy decisions will come down to employers’ risk tolerance and culture, for example, are they OK with employees using cannabis with clients?
Review Drug-Testing Policies
State laws vary on when a positive cannabis test can be used to discipline or refuse to hire a worker and what steps employers have to take before they can make adverse employment decisions.
Some jurisdictions, including New York City and Philadelphia, prohibit pre-employment drug testing for cannabis. Nevada law bars employers from taking adverse action based on a positive pre-employment cannabis test result.
Employers who operate in those jurisdictions may need to make adjustments to their existing policies. However, even where such laws have been passed, there are general exemptions, including for safety-sensitive positions; for those involving driving or piloting vehicles, ships, or planes; and where testing is required by other laws.
Some workers, such as drivers who are subject to the U.S. Department of Transportation‘s rules, must regularly pass drug tests, regardless of state and local cannabis laws. Employers not covered by federal rules likely have some thoughtful decisions to make about whether to include Tetrahydrocannabinol (THC) in any or just some drug screening panels, such as pre-employment or post-accident.
Tetrahydrocannabinol (THC) is the psychoactive component of cannabis. Employers that drug test typically uses a five (5) panel screen that includes amphetamines, cocaine, cannabis, opiates, and Phencyclidine (PCP). More and more employers are deciding to stop drug testing altogether or are giving the five (5) panel test but asking the lab not to provide the results for Tetrahydrocannabinol (THC).
Due to staffing shortages, Freimann expects to see more private companies loosen hiring requirements and no longer test for cannabis use as a condition of employment. Workplace safety considerations remain paramount and vary depending on the type of workplace.
Employers should decide their policy, have a plan, and clearly communicate it to employees. It is recommended that employers have their policies vetted by local employment counsel because legal rules and practical effects vary greatly by state.
Will Federal Law Change?
Recent efforts to reform cannabis law have stalled in Congress. Federal cannabis law reformers had hope in 2021 with what was perceived as a more liberal administration, broad support by Americans, and even bipartisan backing.
However, the bills introduced in 2021, such as the sweeping Cannabis Administration and Opportunity Act, did not get very far. This and three (3) other bills are still circulating Capitol Hill, some of which compete with one another.
It is expected to see small, incremental changes at the federal level, which could include proposals to reduce or remove criminal penalties for cannabis-related offenses or to allow financial institutions to handle money from cannabis businesses that already operate legally under state law.
While change is always possible at the federal level, employers are more likely to see significant changes coming from state and local legislation. Unless and until cannabis becomes legalized at the federal level or state laws become more uniform, employers face a complicated and ever-changing landscape.
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