Human Resources (HR) Publications

Coming to a state near you? Recreational marijuana complicates workplace drug policies

By: Judy Kneiszel

Publication: Employee Relations Management Today

Date Posted: Sep 6, 2019

On June 25, the governor of Illinois signed a law making his state the 11th to legalize marijuana for recreational use. The law takes effect on January 1, 2020

Like Illinois, several other states that have legalized marijuana for medical use may soon approve recreational use.

While efforts to legalize recreational marijuana have fallen short this year in Connecticut, New York, and New Jersey, legalization proponents will try again in those states, and the question may be on the ballot in 2020 in Florida, Arizona, and Ohio.

This brings up many issues for employers, including questions of safety, drug testing, and employment protections.

Protections for employees who use marijuana

The Illinois law includes language regarding employee protections. Once the law takes effect in January, employers will be prohibited from taking disciplinary action or terminating an employee due to the employee’s recreational marijuana use outside of work.

Similarly, starting in 2020, it will be illegal for employers in Nevada to refuse to hire job applicants based on positive results for marijuana in pre-employment drug testing, because of a new law signed there on June 5. (Recreational marijuana was legalized in Nevada in 2017.)

If recreational marijuana has been legalized in your state, or may be soon, don’t assume everything is business as usual. Here are some recommendations for employers doing business in states with legal recreational marijuana:

1. Know your state and local laws. Every state that legalizes recreational marijuana does it a bit differently. Some include specific employee protections. This can be especially complicated for multi-state employers.
2. Have a clear, written policy on marijuana use at work. Even under the new employee-friendly Illinois law, employers can forbid employees from using cannabis at work (including in parking areas and company-controlled vehicles) or being under the influence of cannabis while performing job duties or while on call. 
3. Make sure your policy addresses impairment and possession at work. Regardless of whether recreational marijuana is legal in your state, an employer can have a policy prohibiting marijuana impairment as well as possession at work. While carrying small amounts of marijuana in public may be legal under certain state laws, employers are generally not obligated to allow it in the workplace, even if the employee does not intend to use the substance during work hours.
4. Train employees on risks. Employees should be reminded that marijuana use, like alcohol and opioid painkillers, can impact judgement, reflexes, and cognitive dexterity, increasing the risk of injury in the workplace.
5. Train supervisors. Be sure supervisors know the signs of impairment, and the procedures they should follow if impairment is observed.
6. Have a consistent policy regarding drug testing (in compliance with applicable state marijuana laws). Be clear and transparent about who is subject to testing, how tests will be administered, and what the consequences of a positive drug test will be; specifically, how will marijuana usage be handled.
7. Be a recovery-friendly workplace. Assist employees in receiving treatment for any substance use disorder, whether the substance is alcohol, marijuana, opioids, or other drugs.

Remember, some employees may be prohibited from using marijuana, even outside of work. Marijuana remains illegal under federal law and employees in federally regulated safety sensitive positions face consequences for using the drug. For example, drivers who need to adhere to federal Department of Transpiration drug testing rules face a violation if they test positive for marijuana, even in a state where it is legal.

States where recreational marijuana is legal:

Alaska

California

Colorado

District of Columbia

Illinois*

Maine

Massachusetts

Michigan

Nevada

Oregon

Vermont

Washington

*Law goes into effect January 1, 2020

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