Cannabis and HR: Our Experts Answer Your Questions

Laws are changing with lightning speed as states and municipalities across the country redefine their relationship with cannabis. This level of rapid change presents a challenge to employers, who may have to reassess their pre-employment drug screening and on-the-job drug testing policies to maintain compliance in an evolving landscape.

Tina Peckman, Senior Director, Human Resource Services and Christine Parker, Senior Human Resources Manager at ExtensisHR address some of the most common questions we receive from employers concerned about how these laws will influence their workplace policies.

“With all the new marijuana/cannabis laws being passed, can our company still administer drug tests to prospective and existing employees?”

Unfortunately, the answer is not an easy yes or no. Many states continue to ease restrictions on the use of marijuana for medicinal or recreational purposes, while off-duty. However, many employers may still need–or desire–to continue with their current testing or discipline policies for marijuana use.

To assess if testing is lawful, we should start at the beginning. 

Currently, all marijuana use in the United States is illegal under federal law. Marijuana is listed as a Schedule I drug under the Controlled Substances Act, which means it is deemed to have no medical value and a high potential for abuse. Despite federal law, state laws easing restrictions must be considered to ensure all pre-hire, disciplinary, testing, and termination processes are lawful and appropriate for each industry and organization.

Currently, 33 states have legalized medical use, and 11 states and Washington, D.C. have given the green light for recreational use. In many cases, these new laws may also come with employee and workplace protections. There may be nuances in the law in a particular state differentiating between protection for registered medical marijuana patients and recreational users.

Before continuing or considering pre-employment other screenings, examine your specific state laws to determine whether there are any protections in place for medical or recreational marijuana use. These will dictate your policy moving forward.

“Can I ask employees about their personal cannabis use (recreational or medical) during their interview?”

No. Employers should not inquire about an employee’s personal cannabis use, as this can lead to a discrimination claim if the employee is not hired. Inquiries of this type may also violate protections under the American Disability Act or break state or local laws.

Review your current interview guidelines to make sure your lines of questioning don’t encroach on these privacy laws. The HR experts at your PEO company can help you update your hiring process to ensure compliance.

“What steps should I take if I suspect an employee has come to work while under the influence of marijuana?”

First, employers must have a reasonable suspicion testing policy in place. A general policy does not permit to test for suspicion. Your PEO company or other HR advisors can help you craft an explicit policy detailing the circumstances under which “reasonable suspicion” is established.

Even if your company has a reasonable suspicion policy, you should never send an employee for testing based on hearsay or gossip. Instead, document the complaint, then two members of management should independently observe the employee. 

The observers can view the employee from afar but will need to speak to the employee to determine if they smell alcohol or other odor, notice eye dilation, slurred speech, or other behaviors indicating the employee may be under the influence. If an employee is in a safety-sensitive position, they should be relieved of their duties immediately.

Each observer should individually document their observations, noting:

• Odors (ex. smell of alcohol or marijuana)
• Movements (ex. unsteady or fidgeting)
• Eyes (ex. dilated, constricted, or involuntary eye movements) 
• Face (ex. flushed, sweating, or confused)
• Speech (ex. slurred, slow, or distracted)
• Emotions (ex. argumentative, agitated, irritable, drowsy)
• Actions (ex. yawning, twitching)
• Inactions (ex. sleeping or unconscious)

The observers should not diagnose the situation. After the observers have completed their documentation, they should assess their notes and determine next steps. Management and HR should meet with the employee to explain what has been observed and determine–based upon discussion–if testing is required. 

If they determine the employee should be sent for testing, the employee should be provided information on when and how to get tested immediately and next steps as they await results. 

“Do new state legalizations mean my company must revise our existing drug policy and employee handbook? What happens if we don’t?”

Yes, you should update your policies and employee handbook to match state and federal laws. If not, you could end up in court and may be subject to fines. Your PEO company or legal counsel can review your drug policy and employee handbook to ensure both meet compliance requirements.

“How do I enforce a uniform drug policy across my organization? We operate in states where marijuana is legal, and also in states where it’s not.”

If you want to develop a uniform policy for your organization, you should apply the most generous (a.k.a. protective) policy for the employee. The policy should discuss the workplace’s rules and drug testing policies and not condone any type of behavior deemed illegal in each state. Consult with your PEO company, legal counsel, or other HR services provider to ensure your company policies are unambiguously outlined.

“Recreational marijuana use is legal in my state. Does this mean my employees can bring it to the workplace?”

Refer to legislation in your area, as each state’s laws vary. Speak with your legal counsel or the HR experts at your PEO company to determine which laws apply to your state and how to craft a compliant workplace drug policy.

Proceed with caution

The rules regarding cannabis and marijuana policy are shifting dramatically. In a major break from the past, many states now view medical and recreational marijuana and cannabis use as a protected activity. State-level legislation will continue to change for the foreseeable future as case law is interpreted and precedents are set. There’s still a lot of gray area for employers. Therefore, we recommend working with the HR experts at a PEO company who keep close watch over all evolving legislation to ensure you don’t inadvertently slip into non-compliance.

Have you reviewed your company’s drug policy lately? Our experienced HR specialists can assist in updating your policies to match your state’s current laws.