The New Elephant in the (Board)room Has a Name and It's MaryJane
First, it was a crime. Then, it was OK as long as it was medicinal. Next, it was largely decriminalized. Then, in 2012, Colorado and Washington welcomed its use for all…and the floodgates opened. We're talking, of course, about marijuana usage.
With the passing of a new law in spring of 2022, Rhode Island just became the 19th state, plus the District of Columbia, to approve recreational cannabis in the United States (and that's on top of the 39 states where marijuana is already legal for medicinal use.)
And no matter how you as an employer feel about this changing landscape, the laws being passed reflect the preferences of a vast majority of Americans. The Pew Research center found in 2021 that 91% of adults believe that marijuana should be legal for medical and recreational use (60%) or just for medical use (31%.) Put another way, fewer than 10% of US adults believe that all forms of marijuana should be illegal, a sentiment that does not look likely to change in the difficult years after the pandemic.
Why Are Employers So Worried?
At present, marijuana use continues to be classified as a Schedule 1 drug (in the same class as cocaine and heroin) at the federal level, which means workplace policies regarding its use are largely dictated by state. This requires employers to be extremely clear on what their state's policies are - a hard task to start, but more difficult with an ever-growing body of organizations operating in multiple states, each with differing rules and regulations. The added wrinkle here is that the (antiquated) Drug-Free Workplace act of 1988 still requires federal contractors and grantees to ensure a drug-free workplace - regardless of the state - as a condition for receiving grant money (or a contract) from a federal agency.
But also…
There are no tests at present for impairment by marijuana. Unlike an alcohol breathalyzer, which reports current levels of alcohol in the bloodstream and can easily pinpoint intoxication, cannabis tests can pick up traces of the drug 30 days post-use, which means a positive test does not a currently impaired worker make!
So - What Does This Mean for YOU?
In order to continue to evolve as an organization, you need to continue to evolve in your dealings with marijuana. Here are just a few things to keep in mind.
1) Drop the Stigma
No matter your feelings about cannabis, using it is a personal choice - just like drinking alcohol - that some of your employees are bound to make. Consider what personal biases may be creeping into how you treat staff members, or how you may be marginalizing employees who potentially make choices that differ from your own. This goes for hiring practices, too - immediately eliminating candidates who have criminal backgrounds for things like drug possession or use is problematic.
2) Get Clear on State Testing Specifics
Every state is different and it's vital that you understand what the laws say in yours. In California, for example, Governor Gavin Newsom just passed a bill that effectively ends pre-employment urine testing for all but a very small group of industries. Other jurisdictions, such as Philadelphia and New York City, already prohibit pre-employment marijuana testing.
3) Consider Your Company Policy
It's a good idea to have a drug policy, but yours might need a dust-off to account for changes in laws. It may not be possible (or advisable) to make requests about what workers do off duty, but it is well within your rights to expect employees to not be consuming during work (or arriving to work under the influence.) This is, of course, true with alcohol and other substances. Consider whether a zero-tolerance policy, a medicinal use-only policy, or a recreational use policy makes sense for your business, trade, and state.
Last, but not Least…Get A Second Set of Eyes
Seeking legal counsel or an external organization in expertise with state-specific law around human resources is key to ensuring you don't misstep. At Agile Talent Consulting, we're here to help! Let us review your handbook, provide state resources, and share best practices to help your organization keep up with changing policy.