Marijuana in the Workplace

Legislation is evolving across the country

By Matthew W. Burr, SHRM-SCP November 17, 2022
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Marijuana in the Workplace

​Over the past decade, we have seen significant changes throughout the country at the local and state levels related to medical and recreational marijuana, with the majority of states legalizing some use of the plant's psychoactive ingredient, THC. Marijuana is still illegal at the federal legislative level, governing the rules and regulations for U.S. government agencies.

With the president recently pardoning federal marijuana-related misdemeanors, HR professionals need to follow not only the changes in laws and regulations, but also the changing attitudes toward recreational and medical marijuana use. The SHRM Body of Applied Skills and Knowledge recognizes U.S. Employment Law & Regulations as a required aspect of HR expertise. Comprehension of federal, state and local provisions is a necessity for HR professionals

  • Medicinal use and the Americans with Disabilities Act (ADA). Medical marijuana has been legalized in most states. Medical providers can and do prescribe marijuana for medicinal use. Make sure you fully understand the meaning of relevant considerations under the ADA, including reasonable accommodations, essential functions and other terms, along with additional state and local laws and regulations. 
  • Drug testing. Certain states and cities have now banned pre-employment drug testing for THC for many positions. Get clarity on new or amended laws and regulations. Pay attention to Department of Transportation (DOT) rules; there may be separate drug testing policies for DOT and non-DOT employees in the same organizations. Clearly communicate all expectations and policies. 
  • Criminal background checks. Laws and regulations on background checks regarding prior charges for marijuana-related crimes continue to evolve. This includes second-chance legislation. There are a variety of measures across the country defining the do's and don'ts of conducting or forgoing criminal background checks. Take a proactive approach to researching and outsourcing in this area. 
  • Policies and procedures. With legislation constantly in flux, make it a priority to update your organization's policies and procedures on drug-free workplaces, pre-employment testing, reasonable suspicion, post-accident testing and related matters. Regardless of laws and regulations, however, you should have a zero-tolerance policy in place prohibiting employees from being under the influence of any unlawful drugs or alcohol in the workplace. Train supervisors on enforcing relevant policies and procedures and communicating any changes to the entire organization. An employee assistance program (EAP) is recommended for all organizations, large and small. 

SHRM provides great resources for additional information on marijuana in the workplace. Understanding these evolving laws and regulations will set you apart as a certified HR professional. 

Matthew W. Burr, SHRM-SCP, is the owner of Burr Consulting LLC in Elmira, N.Y., and McKinney, Texas; a co-owner of Labor Love LLC; an HR consultant; an adjunct professor; and an on-call mediator and fact finder for the New York State Public Employment Relations Board.

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