As the post-midterm election landscape comes into focus, the legislative impact on employers remains to be seen. But what is clear is that changing laws around marijuana use will influence HR policies in the years to come.
Despite the fact that Arkansas, North Dakota and South Dakota voters rejected their states’ recreational marijuana proposals, those in Maryland and Missouri approved them, bringing to 21 the total number of U.S. states and territories where recreational marijuana is legal.
After the midterm election, in fact, about 48% of the U.S. population lives in a state where cannabis is fully legalized. and more than 75% live in a state where the drug is legal for medical use. That translates into more than 155 million Americans, and by extension employees, who will live in states where marijuana is legal.
Jonathan Ash, a partner and practice lead at Fox Rothschild LLP’s Labor & Employment Department in Princeton, says that, given this expansion, employers across the country should revisit their drug and alcohol policies to determine whether they comply with any new laws or updates.
“While employers can still prohibit the use and possession of marijuana in the workplace, their testing procedures, including reasonable suspicion testing, may need to be reexamined,” he says. “They should also assess whether their workforce has any safety-sensitive positions, such as operation of heavy machinery, that may require additional considerations.”
While two more states legalizing marijuana will make it easier for a larger number of people to access it, Ash says, he doesn’t believe the shifts in the midterms will cause a sea change in overall marijuana usage that could pose a challenge to employers.
“The people who were using it before are just getting it legally now,” he says. “Where marijuana is now legal, I would recommend that employers either stop testing for marijuana or ignore positive tests for marijuana.”
While some employers may still be concerned about spikes in usage in the workplace, marijuana usage is much more difficult to detect than alcohol, Ash notes. And, immediate alcohol testing can be done via breathalyzer or blood test, whereas marijuana use can lead to a positive test for a much longer time period, which makes it unclear if a person is under the influence at that moment.
“Employers should consider removing marijuana from any pre-employment drug screening or if there is a positive test for marijuana, do not use that against a prospective employee,” Ash says, adding that HR leaders should check on their state’s requirements for detecting usage of marijuana in the workplace. In New Jersey, for instance, the state law prohibits employers from taking action against an employee based solely on a positive test, and includes guidance for “workplace impairment experts,” who can be trained to detect if someone is impaired.
Kansas City, Mo.-based Lauren Sobaski, an associate at Fisher & Philips, says that, generally, legalization does not force employers to tolerate workers who are under the influence of marijuana while on the job, nor does it permit its use or possession of it while at work. But, it does mean that employers need to be more cautious when it comes to making employment-related decisions based upon an employee’s positive drug test after lawful consumption off the employer’s premises during off-work hours.
Sobaski says employers will have to continue to rely upon the tangible evidence of impairment to address marijuana use in the workplace until testing technology catches up with the new wave of legislation. And, until that happens, she adds, it will be even more important for employers to train managers and supervisors to spot the signs of marijuana impairment, just like they have been trained to objectively identify the signs of alcohol impairment at work.
Employers might need to revisit some of their practices regarding background checks. In Missouri, for example, the new law specifies that individuals who have expunged records related to certain marijuana convictions are not required to acknowledge the existence of such a criminal history record or answer questions about the record in any application for employment. This is regardless of whether the person has received notice from the court that an expungement order has been issued.