By Diane Buisman - Employment Attorney & Regional Director for Vigilant
Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form, including four states that allow for recreational use. In Alaska, adults 21 or older can now transport, buy or possess up to an ounce of marijuana and grow up to six plants.
Colorado and Washington were the first two states to allow for legalized recreational marijuana thanks to ballot measures passed in 2012.
The District of Columbia became the most recent jurisdiction to join the trend; its voter-approved measure took effect in February, legalizing possession of small amounts of marijuana.
Oregon voters approved a similar measure last fall, which will take effect on July 1, allowing adults to possess up to an ounce of marijuana in public and eight ounces in their homes.
Many other states have passed medical marijuana laws allowing for limited use of cannabis for medical treatment, with possession limits and eligible medical conditions varying from state to state.
So what is potential impact for employers?
Human resources professionals, who don’t consider this question now, may be surprised by the variety of issues they’ll face as legalized marijuana increasingly becomes part of our national culture. Going forward, HR professionals in any state where marijuana possession and use is legal (including medicinal marijuana use), should also expect a growing number of questions from employees. Be prepared to educate employees about the company’s drug policy and how it applies to legalized marijuana. Employees need to understand that even if using marijuana is legal in their state, testing positive at work can impact their job.
New drug and alcohol policies in the workplace.
For those companies that don’t have drug policies currently in effect, preparing for legalized marijuana will take a little longer. A company needs to first decide whether implementing a drug and alcohol policy is right for their workplace, depending on their industry, the safety-sensitive nature of their work environment, and the company culture. If a company wants to move forward with implementation, they’ll need to make important policy decisions, such as which substances to ban, whether to conduct drug testing, and the consequences of violating the policy. Rolling out a new drug and alcohol policy takes time and effort, requiring communication and training for employees and managers about new rights and responsibilities.
Employers who are already conducting drug testing should expect an increase in positive test results. According to Quest Diagnostics, a national lab that provides workplace drug testing, Colorado and Washington have seen an increase in positive drug tests in the general workforce by 20 and 23 percent respectively between 2012 and 2013. Employers in states where marijuana has become legally available should anticipate a similar outcome.
Is a positive test result is an actual and true measurement?
Another question that has emerged for many human resources professionals is whether or not an employee who tests positive for marijuana is actually impaired. Urine drug testing is the federal government’s preferred method for testing workers in safety-sensitive positions, and at least one study has shown that cognitive impairment from marijuana use may last up to 28 days. For these reasons, many employers have “zero tolerance” policies, meaning any presence of marijuana in the system would trigger a positive test result. Zero tolerance is especially appealing for employers in safety-sensitive industries, since any possibility of impairment could jeopardize employee safety.
For example, someone who used marijuana two weeks ago may test positive, but it’s unknown whether the employee is actually impaired by that previous use. Due to this uncertainty, some employers are uncomfortable with zero tolerance policies. One Oregon manufacturer we work with employs over 200 people. The company decided that zero tolerance isn’t a good fit for their company in light of legalized marijuana. However, the company has been grappling with identifying what level of marijuana would trigger a positive test result. The company is looking for a creative way to allow leniency for marijuana use while balancing the safety-sensitive issues at play.
Without more sophisticated testing methods, employers who want to test for marijuana, but don’t want to adopt zero tolerance, are forced to make an educated guess about impairment levels. Some employers have decided to abandon drug testing altogether; we’ve seen several employers in Washington, mostly office environments, choose this route following marijuana legalization. Since safety is less of a factor for these companies, there’s less of an upside to ongoing drug testing.
The one-size solution doesn’t fit all.
Legalized marijuana introduces a host of new questions and challenges for HR departments, and there aren’t any one-size-fits-all solutions. Human resources professionals should be prepared to answer questions from employees, as well as evaluate the best strategy and approach to marijuana use in your workplace. If legalization has become a reality in your state or city, now is the time to review your current drug and alcohol policy and tackle these difficult decisions.
About the Author
Diane Buisman is an employment attorney and the regional director at Vigilant. Headquartered in Oregon, Vigilant is dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve complex employment issues such as employment law, learning and development, safety and HR best practices. Connect with Diane on Linkedin.