Overshadowed perhaps by the results of the presidential election on November 8th, voters in eight states passed referenda to legalize marijuana use. Voters in four states— California, Maine, Massachusetts, and Nevada—voted to legalize the recreational use of marijuana (Arizona being the only state in which the proposition failed). Voters in Arkansas, Florida, Montana, and North Dakota voted for the legalization of the medical use of marijuana.
The legal landscape around marijuana is substantially different than just a few short years ago. Eight states allow recreational use (Alaska, Colorado, Oregon, and Washington having done so previously). Over half of the states allow medical use. Several other states have legalized cannabidiol use (but not yet marijuana use). Is this a harbinger of widespread acceptance of marijuana use? And, if so, what does this mean for business and the workplace?
The first consideration for many companies is how vigilant they wish to be with marijuana usage. You may decide you have a vested interest in keeping marijuana use out of the workplace—for safety and productivity reasons, among others. After all, federal law still prohibits marijuana use due to its designation as a controlled substance (even in states where marijuana use is legal). This is what the Colorado Supreme Court decided in Coats v. Dish Network when Brandon Coats contended that Dish Network fired him for using medical marijuana, even though medical marijuana is legal in Colorado. The state’s highest court found that the state law did not supersede the federal designation of marijuana as a controlled substance. This is also true in states, like Colorado and Wisconsin, that have laws relative to non-discrimination for off-work usage of lawful products and/or engaging in lawful activities.
To Test or Not to Test?
You may be dubious of a candidate’s ability to completely separate marijuana use from the workplace. If you choose to be vigilant in keeping marijuana out of the workplace, you might consider pre-employment drug testing as a first course of action. You might also decide to pursue an additional investigation of candidates beyond the pre-employment drug test—for example, searching social media and other websites that may tip off a candidate’s drug use and related extracurricular activities. Somewhat less vigilant is the differentiation between on-duty and off-duty marijuana use. As to workplace safety and productivity, the consequences of on-duty versus off-duty use could be the same. A related issue—determining whether someone is under the influence during work hours, as positive drug tests do not necessarily indicate when or how often marijuana was ingested (i.e., it can remain detectable for a long period of time).
Consider also what you might lose by aggressively weeding out candidates or employees who use marijuana. In the states that have legalized marijuana use, skilled employees may use marijuana when off-duty—for recreational activity or medical treatment. Businesses who implement strict marijuana rules may be unwittingly limiting their talent pool, to their detriment.
In a strange way, this unique moment in time presents business owners an opportunity to do whatever they wish. Regardless of how you choose to address marijuana in the workplace moving forward, act intentionally and deliberately—be prepared to enforce your policy and understand the ramifications of doing so.
To be continued...(check back next week to learn about handling marijuana use post-hire).
Mark Goldstein is the president of Goldstein Law Group. He has over 20 years of legal experience in the courtroom, employing strategies for staying out of court, and with transactional matters.