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Legalizing Marijuana: What's an Employer to do?

Posted By Editor, Wednesday, November 2, 2016

Contributed by Becky Barton

These days it’s difficult to avoid the election mania covered by the various media outlets. Given the major spotlight on the presidential race, you may not know that the potential decriminalization of marijuana will be on the ballot in several states.

California, Arizona, Maine, Massachusetts and Nevada will all weigh in on legalized marijuana for recreational use (also known as “adult use” and “non-medical use”) where it is currently approved for medical use only. Another 3 states (Arkansas, Florida, and North Dakota) will decide on the future of cannabis for medical use in their states.

Supporters of the ballot measures see this as a boon to the states’ economies via increased taxes and job growth for cannabusiness people. We have seen 25 states and the District of Columbia legalize marijuana in some fashion, making a continued trend of legalization highly likely.

So what does this mean for business owners and employers? Marijuana remains illegal under federal law and the state-by-state variations make this particularly confusing. For example, within the subset of those states approved for recreational use, the amount an individual can personally carry varies.  As an employer, particularly a multi-state employer, these variations can be an administrative and enforcement nightmare.

Or do they? After all, alcohol is a mind and behavior altering substance that’s been legal for over 80 years and we seem to manage that in the workplace, right? Wouldn’t this be treated similarly? Well, it depends. Many laws clearly state that employers don't have to accommodate medical marijuana use during work hours or on company property while other states require reasonable accommodations for workers with disabilities (specifically as it relates to drug testing and adverse action).

The key is to know what is required by the states in which you operate, create an employment policy that complies with state law and enforce it consistently amongst employees of similar work groups.

The Bottom Line: Work with an HR consultant or an employment law attorney to navigate these unchartered waters. They should be watching how these new laws are interpreted by the courts and have your back should your policy need updating.


Becky Barton is the founder of People415, a San Francisco-based Human Resource Consultancy Firm helping companies navigate every stage of their growth.

Tags:  behavior  company culture  employee  employee communication  employee health and wellness  employee relations  Employee Training  employee wellness  healthcare expenditures  hr  HR Communication  HR law  HR Legislation  Human resources management. HR Leadership  law  leadership  management  marijuana  Policies  workforce 

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Five Ways to Prepare for Transgender Employees

Posted By Laurie A. Pehar Borsh, Wednesday, September 30, 2015

...Creating a Safe, Respectful & Compliant Culture


By Jodi Slavik - Vigilant


In recent months, the public has been captivated with news stories about Bruce Jenner’s transformation into Caitlyn Jenner.  Almost 3 million viewers watched the first episode of the reality series “I Am Cait” and other TV shows with transgender leads are receiving broad viewership and critical acclaim. However, transgender isn’t just a Hollywood buzzword, nor is it isolated to urban office environments.  People identify as transgender regardless of where they live or what they do for a living.


According to a report by the Williams Institute in 2011, approximately 700,000 adults in the United States identify as transgender. This number would likely be much higher today, given increasing social acceptance. Although 19 states and the District of Columbia have passed laws prohibiting discrimination on the basis of gender identity, numbers released by the Movement Advancement Project show that 52 percent of the LGBT population live in states that do not have gender identity protections. That means there are thousands upon thousands of individuals who identify as the opposite gender spread across the United States in every type of work environment, regardless of whether there are laws protecting them.


While some businesses have cutting edge diversity practices, including a stand-alone transgender policy and a LGBT committee, others are still struggling to keep sex jokes off the shop floor. However, some of the best practices in response to transitioning employees have come out of businesses where I least expected it, including transport, construction, and manufacturing companies. Even the dirtiest, toughest environments can respond in the most real, caring way.


Here’s what I’ve gleaned from the experiences of some of these businesses:  


#1. Preparation is Better than Reaction

Assume you already have a transgender employee.  How would you like him or her to feel even if he or she never made a transition request? Creating a culture of respect attracts and retains talent and allows you to nimbly respond if a gender transition request occurs.  In 19 states, including Washington, Oregon and California, you have to comply with non-discrimination laws regardless of whether an employee notifies you of his or her decision to re-assign gender. 


#2. Create Compliant Practices

The first step is to review all of your current policies and practices that could implicate or affect a transgender individual or applicant.  These include hiring practices, background checks, internal record-keeping, use of identity documents, dress and grooming standards, harassment training, and medical leave.  Next consider what new procedures and policies you may need to create, including a bullying policy, diversity training, and an internal transition response checklist.


#3. Respect Boundaries

Sometimes responding to a transitioning employee makes you feel like you’re walking a tightrope.  Whose needs do you need to take care of first—the transitioning employee or the surprised workmates? Instead of panicking about how to keep from offending either side, focus on helping both sides respond to change.  Because that’s what this really is—something new, not something weird.  Introduce, communicate, and respect boundaries (and communicate some more).


#4. Deal with the Bathroom Issue Now

What people are afraid of more than anything else is the bathroom situation.  A recent 8th Circuit decision rejected a religious discrimination and hostile work environment claim because a transgender employee (previously male) was allowed to use the female restroom.  The courts--and your transitioning employees--will expect you to accommodate restroom needs.  Determine now whether you can create a gender neutral bathroom space.  If you have more than one restroom, can you identify one that is reasonably accessible as gender neutral? 

In addition to looking at your facilities, begin the conversation with your employees about your desire to have restroom space that makes all of your employees, vendors, customers, clients, and their friends and family comfortable.  Also, encourage dialogue about the fear or discomfort about sharing bathrooms.  The more frequent the conversation, the more fears are neutralized. 


#5. Stay in Touch

Even after the paperwork is complete, the restrooms are squared away, and the work mates have been informed, you need to regularly check in with the transitioning employee, his or her supervisor, and the crew. Harassment and bullying can rear its ugly head at any time, and you are legally responsible for maintaining a work environment that allows all an equal opportunity to perform his or her best.  More important is maintaining your culture.  Every business I have worked with has respect as a foundation of its culture.  If you can assure respect for all employees, your legal compliance will fall in place. 



About the Author


Jodi Slavik is an employment attorney and regional director of Vigilanta company dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve their most complex employment issues. 

Tags:  blog  bruce  caitlyn  employee  employees  equality  hr  hr west  human resources  jenner  legal  lgbt  nchra  Policies  resources  transgender  Vigilant  workforce  workplace 

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Marijuana is Legal in My State: What Should HR Professionals Do to Prepare?

Posted By Laurie A. Pehar Borsh, Wednesday, April 15, 2015
Updated: Wednesday, April 15, 2015

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 NCHRA Connect Blog - Marijuana Drug Policies in the workplacehomes.

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 - Employment Attorney - NCHRA Connect Blog


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.


Tags:  Attorney  behavior  Blog  Buisman  employee  Employment  HR  Human Resources  Legalized  management  Marijuana  NCHRA  Policies  Vigilant  workforce  workplace 

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