Cannabis is legal in 33 states for medical use and 11 states for recreational use. But just because it’s legal doesn’t mean it’s accepted at work.

Although cannabis remains a federally illegal substance, the number of states that permit its use is growing rapidly. Currently, 11 states (plus Washington, D.C.) have marijuana laws in place that permit the cultivation, possession and use of marijuana for all adults, while 33 states have legalized some form of a medical marijuana program. These policy developments have created a new challenge for employers who maintain drug testing policies either as part of the employee onboarding process or a periodic condition of employment.

Naturally, employers have a financial interest in ensuring that employees are not coming to work intoxicated, but cannabis use off the clock would result in a failed drug test as well. Are employers responding to the shift in state laws by relaxing their drug-testing policies to allow for employee consumption outside the workplace? Are they changing their policies for new job applicants? Are they enacting separate rules for safety-sensitive positions? Or are they keeping the same rules in place for fear of marijuana in the workplace?

How cannabis laws have changed

In two decades, cannabis legalization has gone from a fringe issue to a national discussion. In the 1990s, only five states plus Washington, D.C., had marijuana laws permitting medical use. That number gradually crept up to eight states plus D.C. after the turn of the 20th century, yet legalized adult use (often referred to as recreational use) remained unheard of.

It wasn’t until 2012, when Colorado voters passed Amendment 64, that adult-use cannabis was legalized for the first time. In the past seven years, nine more states plus D.C. have legalized adult-use cannabis. Much of this activity occurred via referendum, but Vermont became the first state to legalize cannabis through the legislature. Today, several states are considering doing the same, including New York and New Jersey.

In the same time frame, the number of states in which residents can obtain a medical marijuana card has grown to 33. While cannabis remains an illegal substance under the federal Controlled Substances Act, the federal government has largely taken a states-first approach to regulating and enforcing the new cannabis industry that has grown as a result of the changing laws. Some federal lawmakers have introduced legislation in support of the industry or that calls for outright legalization nationwide, a shift that could potentially lead to marijuana in the workplace.

Cannabis legalization and workplace drug policies

These rapid changes have left many employers in a precarious position. Many employers maintain zero-tolerance policies on using drugs (including marijuana) in and outside the workplace and, naturally, don’t want their employees showing up to work intoxicated.

The legality of cannabis is not the issue; certainly, employees drinking on the job is grounds for termination in any company, despite alcohol’s legal status. However, determining whether employees and job applicants are using cannabis on the job or on their own time is more difficult.

“For employers, a key issue involving marijuana is not legalization but workplace safety, The problem for employers is that impairment, because of marijuana, is usually much more difficult to detect and test for than alcohol. Unlike alcohol, it is very difficult for employers to determine if a positive drug test for marijuana is the result of drug usage during work or on nonwork hours, so it is logistically simpler to just have an outright ban.”

But in some cases, state law makes workplace drug policy more complicated than a simple blanket ban on marijuana use.

Adult-use cannabis vs. medical cannabis

There is a significant distinction between adult-use cannabis, a leisurely activity of choice, and medical cannabis, which is prescribed as a medicine to patients who use a medical marijuana card to get cannabis for a variety of conditions outlined under state laws. Some states bring that distinction into the workplace, and it can impact employers’ drug policies.

“Employers must understand their rights and duties when it comes to drug testing because state laws are evolving. Marijuana is still federally illegal, and employers generally are allowed to have a drug-free workplace and to enforce zero-tolerance policies.”

However, it’s critical that you, as a small business owner, know whether any of your employees are medical marijuana patients and if your state’s laws protect their usage of cannabis in the workplace or against the failure of employer-mandated drug tests.

“A company needs to be careful when disciplining medical marijuana users, Several states have specific laws protecting medical cannabis patients from employment discrimination. Typically, employers can require drug testing before employment and at random times, so long as there is no discrimination against medical marijuana users [who] are legally allowed cannabis for medicinal reasons.”

Further muddying workplace drug policies is the question of employee morale. Many employees argue that legal usage of cannabis off the clock should not be grounds for their termination if they fail an employer drug test. Employers need to keep in mind the attitude of their workforce when making disciplinary decisions related to drug testing.

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