More Lenient Laws Lead to Stricter Marijuana Policies

By Allen Smith Dec 14, 2015
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Even though some employees now have the ability to use marijuana legally, it doesn't mean their employers will look the other way if they attempt to work under the influence.

Stricter policies are in place in states that have legalized marijuana use for medical and recreational purposes than in states that have legalized marijuana use only for medical purposes, suggests a Society for Human Resource Management (SHRM) survey released Dec. 14.

For example, businesses with operations in states where marijuana is legal for both recreational and medical use were more likely than organizations with operations in states where marijuana is legal only for medical use to have a zero-tolerance policy regarding marijuana use while performing work—82 percent versus 73 percent.

In addition, businesses operating in states where marijuana is legal only for medical use were more likely to include exceptions in their policies allowing for medical use than organizations operating in states where marijuana is legal for both recreational and medical use—22 percent versus 11 percent.

“While marijuana use is legal in some states, it remains illegal under federal law,” said Evren Esen, SHRM’s director of survey programs. SHRM polled 623 randomly selected HR professionals in 19 states where medical marijuana is legal and four states and the District of Columbia where medical and recreational use of marijuana are legal.

Marijuana is legal for medical use only in Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island and Vermont. Alaska, Colorado, Oregon, Washington and the District of Columbia have legalized marijuana for medical and recreational use.

The patchwork of requirements is frustrating for employers, said Danielle Urban, an attorney with Fisher & Phillips in Denver.

“It's very frustrating," agreed Ellen Eisenberg, vice president at United Sortation Solutions in Owings Mills, Md., which provides equipment to move products within a distribution or manufacturing environment. In addition to the difference between state laws, global laws differ too, she noted, saying her company employs Dutch colleagues to install equipment and marijuana use is legal in the Netherlands.

Clear Policies

“In states where there are recreational marijuana laws, there is a perception by the general public that marijuana is ‘legal’ and individuals do not consider carefully the ramifications for their employment,” said Kathryn Russo, an attorney with Jackson Lewis in its Long Island, N.Y., office. “If an individual uses marijuana over the weekend, he or she could test positive on a workplace drug test administered on Monday or Tuesday. Employers operating in these states need to articulate their policies with regard to marijuana clearly.”

Substance use policies that do not specifically address marijuana use are more prevalent in organizations in states where marijuana is legal only for medical use than in organizations with operations in states where marijuana is legal for medical and recreational use—65 percent versus 49 percent.

Conversely, policies that specifically address marijuana use are more prevalent in organizations with operations in states where marijuana is legal for both recreational and medical use than in organizations with operations in states where marijuana is legal only for medical use—39 percent versus 22 percent.

Accommodate?

While employers are more lenient in states where only medical marijuana use is permitted, in some states they don’t have to be.

“Many medical marijuana laws explicitly provide that employers need not accommodate marijuana use at work,” Russo said. “In Colorado and Washington, where there are both medical marijuana and recreational marijuana laws, lawsuits filed by employees using medical marijuana have been dismissed.”

She observed, “Just last month a court in Washington dismissed another medical marijuana case, noting that marijuana is still illegal under federal law and that the Washington medical marijuana law does not provide any employment protections.”

And while Colorado has a law prohibiting discrimination against individuals based on lawful conduct away from work, its recreational marijuana law permits employers to prohibit use of marijuana at work and to have policies restricting employees’ use of marijuana, Russo added.

But Arizona and Minnesota have laws that prohibit discharging someone who is using medical marijuana, said Urban, who anticipates that litigation over this issue will continue. And the District of Columbia, New York and Rhode Island all arguably have similar laws.

Survey Findings’ Meaning for HR

SHRM Research concluded that the survey findings mean the following:

  • Regardless of whether marijuana use is legal for any reason in states where they have operations, many organizations will continue to follow federal guidelines that prohibit its use among all employees.
  • More states are likely to legalize the use of marijuana for medical, and potentially recreational, use in the years ahead.
  • Marijuana law reform in some states, such as California (which will have a ballot initiative on recreational use in 2016), could have a significant impact on the viability of federal legislation.
  • Changes in the legality of marijuana use in many states could influence the use of drug testing.
  • Attitudes toward occasional marijuana use may be relaxing, especially among members of the Millennial generation.

Marijuana use is so common among people in some industries that employers are having a hard time finding job candidates who can pass drug tests, Urban said.

In safety-sensitive industries, such as trucking, employers are required to test and hire only employees who pass the tests; applicants in those industries understand that, she noted.

However, in industries that aren’t safety sensitive, such as fast-food and auto dealerships, some employers want to back away from zero-tolerance policies. But no one is willing to be the first to do it, because of the risk of being sued for negligence, she added.

“Everybody jumped on the bandwagon in the Reagan era” and created zero-tolerance policies then, she said. But now, Urban said, employers should be thoughtful about their policies and whether they need to cover recreational or medical use of marijuana.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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