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Edibles can be undetectable and potent, raising questions for employers
Consumption of marijuana by edible means is becoming more common in the growing number of states that have legalized the drug's use.
Long gone are the days of edible marijuana being restricted to "pot brownies." Now, edible marijuana can come in many forms: baked goods, candy, oil emulsions and tablets.
As a result, edible marijuana presents a new challenge for workplaces. In the past, employers could sometimes tell if an employee had smoked marijuana based on its distinct odor. The consumption of edible marijuana is less obvious because it is odorless. In addition, those who ingest edible marijuana may find that the effects are more potent than if they had smoked it.
In fact, two deaths connected with edible marijuana products convinced Colorado lawmakers to toughen marijuana regulations. In news reports about those cases, experts said the amount of marijuana in edibles can vary widely and in some cases the levels are so high people report extreme paranoia and anxiety bordering on psychotic behavior.
Twenty-eight states and Washington, D.C., have legalized marijuana for medical use; eight states have legalized it for recreational use. Sales of legal marijuana reached $6.7 billion in 2016, a 30 percent increase from 2015, according to a report by Arcview Market Research. Sales are predicted to rise to $20.2 billion by 2021.
Whereas smoked marijuana affects the user almost immediately, edible marijuana takes longer to start working (between a half hour to one hour), and the effects can last much longer than smoking the drug. In fact, the effects of edible marijuana can last four to 12 hours, depending on the dose.
"An employee could eat much more of a product with no initial feeling of how much marijuana they have actually taken in and then feel much stronger marijuana intoxication later," said Laura Shelton, executive director of the Drug and Alcohol Testing Industry Association in Washington, D.C.
How can an employer tell if an employee is intoxicated from edible marijuana?
Supervisors need to be trained on the signs and symptoms of an employee being under the influence of any drug, said Curtis Graves, staff attorney at the Mountain States Employers Council in Denver. They may want to consider periodic drug testing, although this could be tricky: For registered medical users of marijuana, who often consume it in edible form, random drug testing is questionable because, even though they may not be "high" or impaired, they could still test positive even weeks after they consumed the drug in edible form.
The key issue to consider, Graves said, is how the employee is performing at work.
"If someone performs poorly, whether it is because they are high or they just aren't a good employee, an employer is within its rights to terminate," Graves said. "I tell employers that, employees are required to report to work free from the influence of marijuana or other drugs. Should they appear to be impaired, they will face discipline regardless of their physician's note."
Graves said he does recommend drug testing in safety-sensitive environments.
Commercial truck drivers governed by the U.S. Department of Transportation (DOT) are prohibited from testing positive for many drugs, including marijuana. "Employers can restrict the use of medical marijuana by these drivers," said Lorie Birk, vice president of member services at the Mountain States Employers Council in Scottsdale, Ariz.
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For drivers not subject to DOT regulations or for other employees whose jobs may involve the safe handling of vehicles or equipment, employers need to pay close attention to state laws.
"For any safety-sensitive position, requiring employees to refrain from illicit drug use is a must," Shelton said. "Ask yourself: Would you want your child driven to school by a school bus driver that consumed marijuana—in any form—shortly before leaving for his or her route?"
Disciplining for Marijuana Use
Being intoxicated by marijuana on the job remains prohibited in most states, allowing employers to enforce drug-free workplace policies. In addition, most state medical marijuana laws "allow employers to restrict the use and bringing of medical marijuana and paraphernalia into the workplace," Birk said.
If an employee brings edible marijuana to work with a doctor's note, "how the employer decides to act is their decision, but it must be stated in their drug-free workplace policy. If employers don't have a drug-free workplace policy, they need to establish one," Shelton said.
Courts have ruled that medical marijuana users can be fired even if they are using the drug by prescription in accordance with state laws.
In 2015, the Colorado Supreme Court ruled in favor of the employer in the high-profile case Coats v. Dish Network. In that case, an employee sued after being fired for failing a random drug test despite having a medical marijuana license.
"No state marijuana law mandates that employers accommodate employees' marijuana use, even if it is off-the-job use that is compliant with state medical or recreational laws," said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, more commonly known as the NORML Foundation, a marijuana advocacy organization.
State supreme courts in California, Colorado, Oregon and Washington have all deemed that "state laws exempting marijuana users from criminal liability do not extend to civil protections in the workplace," Armentano said.
Michigan and New Mexico courts have also ruled that employers are under no duty to accommodate the use of medical marijuana by employees even when medicinal use of marijuana is legal in the state.
Elaina Loveland is a freelance writer based in Natick, Mass.Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.
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