Workplace Protections Growing for Cannabis Consumers

Although employers never have to tolerate on-the-job marijuana use, new legislation and recent court decisions are making it harder to enforce policies against employing cannabis consumers.

All marijuana use is still illegal under federal law, but at least 33 states allow medical use. Eleven of those states and Washington, D.C., also allow recreational use.

Recently, some of those states have been providing greater workplace protections. For instance, a big trend that's taking shape in 2020 is limiting pre-employment marijuana screening. On Jan. 1, a Nevada law took effect barring employers from considering a pre-employment marijuana test result, and beginning May 10, a New York City law will prohibit employers from conducting pre-employment marijuana tests. Both laws have exceptions for safety-sensitive positions and jobs regulated by federal programs that require drug testing.

Here are some other state-law developments on marijuana and the workplace that employers should note. We've rounded up articles and resources from SHRM Online and other trusted media outlets on the news.

California Lawmaker Wants to Protect Medical Use

California Assemblyman Rob Bonta, D-Alameda, recently introduced legislation (AB 2355) that would require employers to explore reasonable accommodations for job applicants and employees who are registered medical marijuana patients. "Medical cannabis, as recommended by a doctor, should be given a similar reasonable accommodation as all prescription drugs," Bonta said.

(Los Angeles Times)

[SHRM members-only HR Q&A: How does California law regarding medical marijuana use affect hiring and other workplace practices?]

Colorado Legislators Halt Bill with Broad Protections

Colorado Rep. Jovan Melton, D-Aurora, recently introduced HB20-1089, which would broadly protect people who partake in legal activities under Colorado law—such as consuming cannabis products for medicinal or recreational purposes—even if the activities are still illegal under federal law. "As long as you're coming to work not high or intoxicated, that's your business," he said. However, the House Committee on Business Affairs & Labor postponed the proposal indefinitely, citing concerns about the inability to test for impairment.

(The Denver Post)

New Jersey Workers' Comp Claimant Gets Cannabis Reimbursement

A New Jersey appeals court ruled that employers in the state must reimburse employees for medical cannabis following a workplace accident, despite federal prohibitions against cannabis distribution. Employers in other states that have legalized medical marijuana use but have yet to rule on the interplay between the federal Controlled Substances Act (CSA) and state law in workers' compensation disputes should also take note in case similar reimbursement requests arise.

(SHRM Online)

Pennsylvania Workers Can Sue Under Medical Marijuana Law

A Pennsylvania state court held that employees who use medical marijuana in accordance with state law have the right to sue their employers under the act. "Without the availability of an implied right of action for an employee who is fired solely for being certified as a medical marijuana user, the anti-discrimination directive in [the act] would be rendered impotent," the court said. Although the court's ruling isn't binding on all other courts in Pennsylvania, employers should carefully review the law and their options before taking an adverse employment action against a registered medical marijuana patient in the state.

(The National Law Review)

The Science Behind Marijuana Testing at Work

While the courts and legislators continue to grapple with marijuana's legality, the National Safety Council says more research is needed on cannabis to determine how it affects users and their ability to function when under the influence. Drug screens only show whether someone has used marijuana—not if that individual is under the influence. The amount of tetrahydrocannabinol (which is known as THC) in marijuana determines its strength, and it can have vastly different effects on users depending on their body weight, method of consumption (smoking versus edibles) and patterns of use—occasional users compared to daily users, for instance.

(SHRM Online)

Focusing on Impairment

Employers should train managers and supervisors on ways to reasonably observe when someone is working under the influence. For example, testing based on reasonable suspicion could be triggered when an employee has slurred speech or is argumentative, irritable or nonresponsive.  

(SHRM Online)

Consider Reasonable Accommodations

If an employee or job applicant is a registered medical marijuana patient in a state that allows cannabis use to treat a disability, the employer may need to explore possible accommodations.

(SHRM Online)