Times are changing. As the issue of medical and even recreational cannabis use becomes a question less and less set-in-stone, businesses are increasingly wondering whether they need to change their policies in the wake of shifting tides. Fortunately, Axcet HR Solutions can help guide the way.
In order to help you identify the changes you may or may not need to make within your own organization, we asked Brent Coverdale, partner at Scharnhorst Ast Kennard Griffin PC, to share his expertise as it relates to marijuana in the workplace, as laws continue to develop and evolve.
1. Public Opinion Favors Legalization.
Medical marijuana is already legal in 33 states plus the District of Columbia as of April 2019. Recreational use is legal in 10 of those states, as well as in D.C. While many states, like Kansas, continue to hold out on legalization for the time being, it is important to note public pressure for legalization is higher than ever. A 2018 Gallup poll found 66% of Americans support marijuana legalization. That amount jumps to nearly 90% when the focus of legalization is for medicinal purposes. This massive, bipartisan support of legalization means the number of states with legalization is likely to continue to increase. Even companies in Kansas shouldn’t turn a blind eye to these trends.
2. The Workplace Can Still Be Drug-Free.
Although legalization increases the likelihood employers will have to deal with usage in the workplace, it is important for employers to remember state legislation only protects private use. This means you can keep policies in place that prohibit usage while at work.
3. As of Now, There Is No Test for Immediate Impairment.
While drug-free policies are easy to declare, they have become more difficult to enforce where marijuana is concerned. The problem is drug tests currently available for marijuana detection cannot test for immediate impairment. Traces of THC—the psychoactive component of marijuana—can be detected in urine for up to 30 days after consumption, making it difficult to prove an employee was high while working.
4. Instead of Relying Solely on Testing, Look for Additional Evidence.
Because there is no test for immediate impairment, employers in states with legal marijuana need to look for other evidence of impairment while working if they are to act against an employee. Evidence of impairment at work can include possession, odor or other telltale signs of marijuana use, such as unusually bloodshot eyes or erratic behavior. Managers should be informed and trained on spotting these signs. It should be noted, however, that employees with prescriptions for medical marijuana are protected from punishment over mere possession, so additional evidence needs to be gathered for reasonable suspicion in these cases.
5. In Some Cases, Federal Law Trumps State Law.
If your business employs workers in positions regulated by the Department of Transportation—such as commercial truck drivers—then those workers are required to undergo drug testing per federal law regardless of state laws. If your business has federal contracts, we encourage you to review the terms of these contracts to see if they have specific requirements that mention drug regulation. Otherwise, federal law does not obligate you undertake action against cannabis use, so you should turn to state laws to see what is required of you.
6. We Need to Consider Safety Sensitivity.
While we are still in the early stages of determining how drastically marijuana affects safety-relevant skills, such as coordination, it is commonly believed marijuana inhibits a person’s motor skills and cognitive abilities. This makes marijuana a potential danger to safety sensitive jobs. Even states with legal marijuana do not protect use at work that would constitute negligence or professional malpractice, so you can be more vigilant of marijuana use by employees in positions where safety is paramount, such as truck drivers or forklift operators. Even engineering positions can be deemed safety-sensitive, since negligence can impact the safety of others later. However, you still need to be fair when determining safety sensitivity. Courts will not look favorably upon an employer that considers an accountant a safety-sensitive position, for example.
7. CBD Regulation is Often Unclear.
CBD, a cannabinoid like marijuana, has found commercial success in recent years even in states such as Kansas where marijuana remains illegal. CBD from hemp does not have the psychoactive effects of marijuana since it lacks THC, so it is unscheduled by the DEA. However, CBD extracted from marijuana can still contain psychoactive levels of THC and is a Schedule I Controlled Substance, so there remains confusion over how CBD should be regulated. State laws often leave distinctions unclear. For employers, treating CBD with THC like marijuana seems like a logical conclusion, but tread carefully and seek outside advice if CBD with THC becomes an issue in your workplace.
8. Crossing State Lines Doesn’t Have to Be Complicated.
Since Axcet HR Solutions primarily caters to the Kansas City Metropolitan area, a region that overlaps the border between Kansas and Missouri, we work with many businesses that employ workers who reside in another state. This can be confusing for employers trying to determine how they should set their marijuana policies: should they follow Kansas law or Missouri? In most cases, though, a business should follow the laws of the state it is located in. This means that residents of Missouri—a state where marijuana is legal for medical purposes—must follow Kansas marijuana laws while working in Kansas. Even if the Missouri resident has a medical marijuana prescription, it is still a Kansas employer’s prerogative to enforce zero-tolerance marijuana policies. For Kansas residents commuting to Missouri, matters are less complicated since they cannot obtain a medical marijuana prescription out-of-state. It is still worthwhile, though, to keep an eye on state laws. Laws seem certain to change and evolve in the near future.
The information and materials on this site are provided for informational purposes only. They do not necessarily represent the position or opinions of Axcet HR Solutions or its employees, and they do not constitute legal advice. You should consult with a qualified lawyer of your choice who is familiar with all of the facts of your situation before making a decision about any legal matter.