Can Employers Offer Cannabis Cookies at the Holiday Party?

Cannabis use has become more commonplace, particularly as states continue to legalize recreational sales and consumption. But employers may want to hold off on offering cannabis-infused treats to complement the beer and wine selection at the holiday party. Here's why.

Adult recreational marijuana use is legal in at least 18 states, but the details on permissible use, possession, sales and distribution vary significantly. For example, while California allows for retail sales, possession of more than about an ounce is still illegal and smoking or ingesting weed in public remains illegal. In Virginia, recreational use is legal, but retail sales aren't expected to be approved until 2024.

To further complicate matters, all marijuana use remains illegal at the federal level.

Michael Freimann, an attorney with Greenspoon Marder in Denver, noted that there are many risks associated with cannabis use at employer-sponsored events. Who will be permitted to "serve" the cannabis? How will the company purchase it? How will the employer ensure attendees get home safely and out-of-state participants don't transport cannabis across state lines?

"This is not a decision that should be taken lightly, especially since this particular issue is new and untested," said Jennifer Mora, an attorney with Seyfarth in San Francisco. She recommended that employers confer with internal stakeholders to determine the benefits and the risks and only allow cannabis use if the benefits outweigh those risks.

Here are some questions for employers to consider as they plan their year-end celebrations.

What impact will the policy have on professionalism and morale?

"Just like with alcohol, the use of cannabis at a company event could present workplace safety issues and open up the company to liability for any employee misconduct during the event," explained Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. If employers decide to enact this type of policy, she said, they should clearly communicate that employees who choose to partake must use cannabis responsibly and act professionally at all times. Let employees know the consequences of failing to abide by this standard.

Taking a relaxed stance on cannabis use may affect employee relations, Mastroianni added. "While the decision may be welcomed by a portion of the workforce, it may also make other employees uncomfortable due to their personal feelings about cannabis use."

So employers should be prepared to address any employee complaints or concerns that arise from that decision.

 Employers should consider whether the policy might cause an increase in harassment and other types of claims. They should develop a process for addressing complaints that are brought against impaired employees, Mora said, just like they would when alcohol is served at events.

If employers are considering allowing cannabis use at social functions, they should first review their workers' compensation and liability insurance policies to see whether work-related accidents or injuries would be covered, Mora suggested.

Do smoking rules apply?

Allowing workers to smoke weed would create more potential issues than offering edibles. For example, nonparticipating employees may not be comfortable with the secondhand smoke.

Additionally, state laws that ban smoking in public or workplaces may apply. "While states initially passed these laws with the intent to prohibit smoking tobacco products in public and/or in the workplace, many of these laws regulate smoking cannabis as well," Mastroianni noted. Employers in a state with these laws may not be allowed to sanction cannabis use at an event or meeting on company premises or in a public place.

Does the policy conflict with federal requirements?

Marijuana is listed as a Schedule I drug under the Controlled Substances Act, which means it is deemed to have no medical value and a high potential for abuse.

"An employer that provides or dispenses marijuana at work may be committing felonious possession with intent to distribute a Schedule I drug under federal law," Mora noted. She suggested that employers avoid distributing or dispensing cannabis products. But if employers want to allow cannabis, she said, they should have clear policies limiting how much and what type can be consumed, along with where.

Additionally, due to the current conflict between federal and state laws, attorneys said federal contractors and subcontractors should not permit cannabis use at employer-sponsored events. Otherwise, employers with government contracts may risk losing federal funding.

Employers should also consider whether workers are subject to U.S. Department of Transportation and other federal and state agency regulations that require regular drug and alcohol testing.  

Currently, there is no widely accepted and proven test to detect real-time cannabis impairment, so an employee who consumes cannabis products while off duty could still test positive days (or even a month) later and face consequences for failing to comply with a drug-testing policy.

Does your company have safety-sensitive jobs?

Employers should remember to be consistent with their policies and practices. "Make sure you consider your company's stance on drug testing and whether it still tests for marijuana use," Freimann said. The employer will have a challenge imposing any disciplinary action if an employee argues that cannabis was consumed with the company's permission.

Mastroianni noted that employers with workers in safety-sensitive positions or in the health care industry should also think twice about permitting social cannabis use at company-sponsored events.

The National Safety Council recommends that employers adopt a zero-tolerance policy for cannabis use in safety-sensitive positions, regardless of state law.

"Permitting employees to use cannabis at a social event the night before and then allowing the employees to perform their job duties the next day—while still potentially under the influence of cannabis—can result in a whole host of safety and legal liability issues," Mastroianni explained.

Given that cannabis can stay in an employee's system for days, she said, determining whether an employee is impaired from cannabis use while performing his or her job duties is difficult.