As states continue to legalize cannabis, both for medical and recreational purposes, a hundred new questions are cropping up on how to handle the new infrastructure of a decriminalized United States. These questions are especially prominent with the general election just around the corner on November 8th. This election round will see five states who already allow the use of medical marijuana, including Arizona, California, Maine, Massachusetts, and Nevada, vote to potentially legalize recreational marijuana use. If these states do vote for decriminalization, how will the landscape of employer’s drug policies change, if at all?
Will Employer Drug Policies Change for Recreationally-Legalized States?
The direct answer appears to be no. If new marijuana recreational laws are passed, it would not have any effect on employer drug policies. In all five measures, the language explicitly states to some extent that they “[do] not affect employers’ current marijuana policies or their ability to establish workplace restrictions on marijuana consumption by employees.”
If you consider other recreationally legalized drugs, such as alcohol, this makes perfect sense. While alcohol is legal for recreational purposes, employers still retain the right to restrict the use of the substance on the premises and prohibit employees being under the influence while on the job. Some legalization campaigns have taken to this theme, calling the initiative “Regulate Marijuana Like Alcohol.” They use alcohol regulations as a template for marijuana regulations, seemingly in an attempt to make the marijuana legalization movement more palatable. The thinking seems to be that if we can think of marijuana in similar terms as a drug that is already recreationally legalized, then it somehow softens the blow.
But alcohol and cannabis are in no way the same substance. While in some instances it makes sense to use alcohol regulations as a guideline for a newly decriminalized drug, it also misses major differences between the two drugs, and in so doing, makes for bad policy.
One of the biggest differences between the two is the way in which both substances are stored in the body. The liver generally metabolizes one ounce of alcohol (or a .015 blood alcohol concentration) in one hour. This means that, on average, it will take 10 hours for a person with a BAC of .015 to be completely rid of the substance. On the other hand, the compound THC-COOH, which marijuana drug kits test for, can stay in the body much longer, sometimes for weeks at a time. This means that if an employee had a wild Friday night on the town with a few drinks and is tested on Monday, they’ll test negative, while an employee who smoked a medically legal joint to relieve pain in the privacy of their own home could be fired weeks, or even months after the occasion, depending on the type of test. Unfortunately, there is currently no effective, or fair, way to prove that an employee was actually under the influence while on the job.
However, in some states, lawmakers have acknowledged this major difference and have instituted caveats for exacting punishment on an employee who tested positive for cannabis. In Arizona, Delaware, and Minnesota, employers must prove that the employee was “high” on the job in order to terminate them. In these same states, employers are also prohibited from discriminating against employees with medical marijuana licenses.
The legalization initiatives on the ballot next week show that we’re making headway overall, but the standstill of employee drug policies in most states show that the initiatives aren’t without flaws and that the public still has a long way to go in understanding the science behind cannabis.
Marijuana in the Workplace
It’s understandable why employers are wary to allow marijuana use on the job. There are concerns about productivity, safety, and because cannabis is still categorized as a Schedule I substance under federal law, it’s perfectly understandable that employers would be concerned. Plus, after cannabis was legalized recreationally in Washington and Colorado, those states saw an increase in positive drug test results. Interestingly, in 2014, when the entire nation experienced an uptick in positive drug tests results, Washington and Colorado remained steady. Dr. Barry Sample, director of science and technology at Quest Diagnostics, suggests that this puzzling piece of information shows that marijuana use has leveled off, not spiraled out of control, after the increases seen in the years that marijuana was decriminalized.
But not everyone is opposed to marijuana use in the workplace. In fact, one fifth of small businesses owners polled by Employers Insurance said they would allow employees with medical marijuana licenses to use the drug while at work. Even more surprising, 80 percent of respondents (which polled 500 small-business owners with fewer than 100 employees) were unconcerned about their employees coming to work under the influence of marijuana. This goes hand in hand with the fact that 42 percent of small businesses polled don’t have written drug policies concerning marijuana. In most cases, employers would never know whether or not an employee was using, as 74 percent do not require employee drug tests. Although employer drug policies are not subject to change, it may not even matter. Most workplaces seem fairly lax about the prospect of marijuana usage.
The most accepting of all, of course, are those in the marijuana industry. FlowHub, a company that develops software for businesses in the cannabis industry, allows their employees to use marijuana on the job. Because of laws prohibiting smoking inside buildings, employees are permitted to bring in edibles and other smokeless marijuana products to consume during the workday. They take the “if they’re productive, then it’s okay” approach.
In some respects, marijuana could become the new happy hour, with marijuana replacing, or at least becoming an addition to, alcohol. For instance, the cofounder of MassRoots, a social media platform for marijuana, hosts weekly smoke sessions at his apartment building for the employees.
As more and more states legalize marijuana, lawmakers must find new ways to incorporate the new substance effectively and safely into already established institutions, and employers must figure out how to handle marijuana use amongst employees. The workplace will certainly be an interesting place to watch how marijuana decriminalization is affecting the professional landscape. We may soon see a day when the stigma of marijuana is lifted and workplaces host marijuana bonding sessions versus the historically acceptable practice of “happy hour” or “bar 30” where alcohol consumption is not only tolerated, it’s encouraged… or at least identify equitable terms and conditions that address marijuana use in the workplace. But until that time, don’t gamble with your livelihood – understand the drug policies at your workplace, or seek the professional advice of an employment law attorney for specific questions.
VOTE on Tuesday, November 8th! For a look at some of the marijuana initiatives on the ballot next week, click here.