Coping with Marijuana Legality Changes
While medical marijuana in Arizona has been legal for some time now, the ongoing legalization of recreational marijuana in the US has again made workplace policies in this arena a hot topic.
Although it may take a few years to reach full legalization in AZ, our proximity NV, CA, and CO, where it is legal, is reason enough to take a little time to make sure you are compliant with existing law and are prepared to transition when full legalization almost inevitably comes.
In the case of legal prescription for cannabis, your policy should address its use just as you would any other prescribed, controlled substance.
Like many social topics in America, culture is shifting in its attitude toward the use of marijuana. No longer is the prevailing perception of marijuana use that of Cheech and Chong. Now, the perception is moving to one akin to craft beer or wine cultivation. The acceptance of the use of cannabis to treat a variety of medical and psychological ailments is near universal. As employers and business owners, we need to be considering where we want to fit into this new landscape.
In the vast majority of states, the use of medicinal marijuana is legal. However, many employers are still unsure how to manage this in their “Drug Free” policies. In the case of legal prescription for cannabis, your policy would address its use just as you would any other prescribed, controlled substance. For example, if an employee’s job prohibits them from being under the influence of a narcotic, for safety reasons, you can also prohibit them from being under the influence of cannabis. This is where it becomes VERY important to have clear job descriptions that detail safety sensitive positions and a clear drug and alcohol policy that addresses legally prescribed substances.
You should require that employees disclose any need to use controlled substances and go through the process of trying to accommodate their needs, just as you would for a disability. You absolutely have a right to expect that your employees show up ready and able to do their jobs, safely.
In an ever-growing number of states, recreational use of cannabis is also legal. In this framework, I advise employers to first consider whether it makes sense to include marijuana specifically in their policies at all. If you have a business that does not have safety restrictions, you may want to treat the recreational use of marijuana like you do alcohol. Again, you can and should expect that your employees show up ready and able to do their jobs.
Testing is still the trickiest part of this evolution. The testing for THC levels in samples has gotten increasingly better and will likely continue to improve over time. However, testing is nowhere near as accurate as it is for alcohol. There is no clear-cut answer for testing so expect to build a relationship with your lab or MRO and be informed about the results of the testing you require. Make sure your lab or MRO understands if you have safety sensitive positions and alerts you to legally prescribed substances or legal recreational controlled substances. I always suggest a testing policy include testing “for cause,” meaning there is a reasonable suspicion that someone is working under the influence of a controlled substance. This includes things like slurred speech, movement inconsistent with their normal behavior, smells or visual clues for intoxication. I also recommend post incident or accident testing for all parties involved. I don’t recommend random testing, although the practice is still very common.
When considering your policies with marijuana, you need to consider that the policy may not (and probably should not) cover all your employees in the same way – for instance, a receptionist wouldn’t be covered the same as a phlebotomist. Working with an experienced HR professional can help to identify areas of risk and can help you keep your policies current as the legal landscape continues to evolve.