On June 25, 2019, Illinois became the 11th state to legalize recreational marijuana, joining the growing list of states and cities that have legalized some form of marijuana use. At this point, it might be easier to just count the states that still ban marijuana in all forms, but one fact remains: It’s still illegal under federal law.
If you’re an employer or HR professional in a state that has legalized recreational use, you must be prepared to have policies in place that curb the use of pot in the workplace. But, sadly, some employers say they do not have such policies in place, according to a recent Paychex study.
New research from Paychex, Inc.—a provider of integrated human capital management solutions—suggests that more than one-third of business owners with fewer than 500 employees are not yet prepared to manage the impact of legalized marijuana on the workplace.
According to the study, business owners are slightly more prepared to manage legalized medical use than recreational use:
- Legalized medical use:
- 42%—Very prepared
- 24%—Somewhat prepared
- 34%—Not prepared
- Legalized recreational use:
- 39%—Very prepared
- 23%—Somewhat prepared
- 38%—Not prepared
The study revealed that among industry sectors, professional services is the most prepared (70%) for medical use and the least prepared for recreational use (58%). Manufacturing and retail/wholesale are the most prepared industries for recreational use (tied at 64%), while manufacturing is the least prepared for medical use (64%).
For William Hummer, DDS, a dental practice in San Leandro, California, the legalization of marijuana for both recreational and medicinal use has sporadically impacted patients entering the door, but the office policy restricting employees from arriving at work under the influence of marijuana remains intact.
“California legalized marijuana a few years ago, and so far the only impact we’ve seen is the occasional patient arriving to the office under the influence,” says Nicole Corvello, Registered Dental Assistant and Office Manager at William Hummer, DDS—in a press release announcing the study findings. “When it comes to our employees, we follow the rule that if you can’t work and drink alcohol, you can’t work under the influence of marijuana. It remains our office’s position that what people choose to do on their own time is their business.”
“Marijuana legalization for medical or recreational use introduces new complexities for businesses to navigate when it comes to workplace drug enforcement policies,” says Martin Mucci, Paychex President and CEO. “While marijuana remains illegal at the federal level, the legislation in each jurisdiction varies and may require business owners, especially those operating in multiple states, to comply in different capacities.”
“Developing appropriate policies for industries with employees operating heavy machinery, for example, may present unique challenges,” Mucci adds.
Managing drug policies in the ever-changing world of HR can be very challenging. It helps if you have a go-to resource, like HR Hero®, and fantastic legal counsel to help you develop such policies. You should also take your state’s current marijuana laws into consideration.
For example, employers in Nevada and New York City are prohibited from discriminating against a job applicant who has tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana, in a preemployment drug screening. While these are the only two locations with such laws, employers and HR professionals should be prepared for more states to follow suit.
If you aren’t prepared now, here are some tips and considerations to keep in mind when drafting a marijuana policy—these tips can also be used when drafting a general drug and alcohol policy, as well.
Compliance with applicable law. As mentioned above, your policy should state that it will be applied in accordance with governing laws. Such laws can include workers’ compensation statutes, specific drug testing statutes, and the like.
Prohibition of the use of marijuana. State your company standard for the use of marijuana or other drugs and/or alcohol at work. For example, you may prohibit drivers from having any alcohol or drugs present in their system while at work. On the other hand, you may prohibit employee intoxication but permit alcohol consumption at company-sponsored events.
Prohibition of possession of marijuana-related paraphernalia. Your policy must prohibit not only the use of marijuana but also its possession, as well as the possession of marijuana-related paraphernalia. As an example, once the drug has been consumed, it may be easier to discharge the employee for possession of the associated paraphernalia than to require a drug test to establish that the individual had the intoxicant in his or her system.
Sale of marijuana. Prohibit the sale and purchase of alcohol, illegal drugs, prescription drugs, controlled substances, associated paraphernalia, or other intoxicants while on the employer’s premises.
Rehabilitation. You can offer rehabilitation as an alternative to discharge, with the provision that you will discharge an employee who is in rehabilitation and either performs his or her work poorly or fails to make progress in the rehabilitation program. You may also want to require rehabilitation as a condition of continued employment for an employee who has violated your policy.
Criminal prosecution. You must decide whether you will report to the police any unlawful substance you find in the possession of an employee. Keep in mind that the failure to report a crime may be a crime.
When drafting a marijuana policy for your workplace, keep these tips in mind, and when in doubt, consult your legal counsel.