As recreational marijuana use becomes legal in Washington and Colorado, and more and more states adopt medical marijuana laws, many employers find themselves wondering how it all affects them. The short answer: As long as you have clear and direct policies on record with your employees, it doesn’t!
Let’s break it down and look a little more closely at this issue:
First of all, while states have the right to make their own laws, marijuana remains a federally illegal substance. Furthermore, while the new laws make marijuana more easily available for personal use, they do not require employers to allow it in the workplace. Basically, legalized marijuana can be treated the same as alcohol: it may be legal, but you have every right to prohibit it to your employees.
The major factor for most companies comes down to safety. Legal or not, marijuana has an impact on the brain and can impair the user. This makes banning the use of marijuana while working a very straightforward decision. However, where marijuana is less clear cut than alcohol is in its extended presence in the user’s system. Existing drug tests can only tell us that marijuana was used in a general timeframe, not whether or not the user is still experiencing its affects. This is why many employers choose not to allow the recreational use outside of working hours even if it is legal in the state. Companies have the right to restrict the use of any substance them deem inappropriate for their employees. For example, many hospitals now ban the use of tobacco products.
The trickiest aspect of the evolving marijuana laws involve the medically prescribed use of the drug. The US Justice Department has gone on record stating that, while within their federal right to prosecute any users, they will decline to prosecute anyone using medical marijuana in accordance with state law. However as previously mentioned, the existing state laws do not require employers to follow suit and allow, if not endorse, the practice. Furthermore, state Supreme Court cases that address these issues have been decided in favor of the employer’s right to terminate employees that test positive for marijuana, regardless of their medical standing.
So where do we go from here?
If you are an employer it is always wise to periodically review and update your policies. Clearly defined policies signed by employees are the easiest way to combat lawsuits of any kind. If you decide to make changes, be sure to clearly communicate these to the workforce in order to keep everyone on the same page. Even if you are satisfied with your existing policy, it may make sense to send out a reminder in order to clear any confusion that may have been caused by the news coverage surrounding the new marijuana laws. Most importantly, be sure to stay on top of any changes and have a plan for adjusting if the need arises.
As an employee, it is your responsibility to know and follow the policies in place. Chances are you received and signed off on a handbook when you joined the company. This is what keeps you from being able to argue ignorance! If your company’s policy prohibits the use of marijuana and you test positive, they will have every right to fire you – even in Colorado and Washington.
The way we interact with marijuana will continue to evolve. It is everyone’s responsibility to stay informed and act in accordance with the laws and policies whether you are an employee that wants to partake in legal recreational use or an HR Director working with the executives to decide on a company policy.
No matter who you are there are resources available to help! Hopefully this blog was able to clear some of the confusion, and if you have any other questions or comments be sure to leave them below or contact us directly at info@simmons-group.com.