Over the last several years US States have been legalizing marijuana use for medical reasons and even in some States for recreational use. The recreational use of marijuana and THC (the active ingredient in marijuana) is being seen as comparable to the use of alcohol. Recently the use of legal marijuana in the USA has collided with the workplace and no more evident than in the US’s Southwest States. Three States in particular which are California, Arizona and Nevada and all three of them have made marijuana use legal either with medical marijuana and/or recreational marijuana. The legalization of this drug has caused considerable concern over how its use should be treated in the workforce.
It is still unclear how marijuana users will fair against the rules of employers and if their job is safe if they use the drug outside of work hours. Even though it may be legal to use in a certain State an employer can still fire an employee if they test positive for the drug. This can happen in two ways; first if the employer has a drug free policy that explicitly states an employee will be fired if tested positive or because marijuana use is still illegal under Federal law. As a country we have in recent history seen the changes in attitude towards criminal offenders with the inception of ban-the-box laws which changes employment screening procedures with how criminal background checks can be used and now we are witnessing the beginning of the decriminalization of marijuana use.
As legal marijuana use collides with the workforce new laws and policies must be created so employer and employee understand the consequences and rules surrounding how such use will effect a person’s job. These issues are beginning to be addressed around the country but no more prevalent than in the Southwest. These States have been grabbling with the legality of marijuana in their respective States along with how this translates into the workplace arena and what workplace rules need to change.
Already in California, Arizona, and Nevada the rules relating to marijuana use and the workplace are subtly different.
Citizens of California recently voted to legalize the recreational use of marijuana. Effective January 1, 2017 Californians can buy marijuana at dispensaries without a medical card. Almost immediately the question of marijuana and the workplace returned to the limelight.
From Lexology.com (May 02, 17):
Way back when, in 2008, the California Supreme Court held that employers need not accommodate an employee’s medicinal marijuana use. And it remains the practice for many employers to enforce drug use policies specifying that the employer has a zero tolerance toward working under the influence of drugs, including newly legalized substances such as THC (the active ingredient in marijuana). Unambiguous drug use policies will put even the most dazed and confused employees on clear notice that these “legalized” substances are not tolerated at the workplace. lexology.com/library/detail.aspx?g=a8a100c2-2e49-4896-abb3-bc43be27f823
While the use of Marijuana in the workplace being banned is a common thread in all three states, California has the somewhat unique position in regards to random drug testing.
From Lexology.com (May 02, 17)
California employers may have a legitimate interest in enforcing a drug free workplace, but our Constitutional right to privacy generally protects against a random, suspicionless drug tests. Because an employer’s right to drug test relies on a balancing test (is the employee’s privacy interest outweighed by the employer’s interest in keeping the workplace safe and drug-free?), courts commonly look to whether there are less intrusive ways than random testing to protect the employer’s interest, and typically determine that there are. lexology.com/library/detail.aspx?g=a8a100c2-2e49-4896-abb3-bc43be27f823
Arizona’s law is more cut and dry. As long as Marijuana is illegal under federal law it can be cause for dismissal in regards to the workplace.
From ABC15.com (Apr. 20, 17):
While medical marijuana may have come a long way in the state of Arizona, but when it comes to using it in the workplace, even those with prescriptions and state-issued cards are learning it’s not enough to protect their jobs.
While it was legal in the state, the drug was still illegal according to federal law. He described it as a new and exciting area for lawyers. abc15.com/news/region-phoenix-metro/central-phoenix/medical-marijuana-in-the-workplace-still-a-gray-area-for-valley-employees
Nevada is one of the more recent states to legalize medical marijuana. As with the other two states Nevada does not allow the use or possession of marijuana in the workplace, but does require that employer’s make reasonable accommodation.
From AppliedBusinessNV.com (Apr. 26, 17):
Nevada’s medical marijuana law requires that employers attempt to make reasonable accommodations for the medical needs of an employee who holds a valid medical marijuana card, subject to certain limitations. Specifically, employers do not need to provide reasonable accommodations that would:
(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or
(b) Prohibit the employee from fulfilling any and all of his or her job responsibilities. appliedbusinessnv.com/recreational-marijuana-legalized-in-nevada/
As the legalization of marijuana use becomes more widely accepted in the USA; and as its legalization has been adopted for a longer period of time the current confusion surrounding its use with workplace laws should become clearer. As with alcohol employers do not let their employees show up for work drunk and neither will they let them show up for work high. But if an employer has a policy of drug testing and THC is one of the banned substances then today that individual if tested positive to the drug could get fired. However, almost all employers in the country do not care if their employees consume alcohol when they are not working, so eventually marijuana use could be treated the same way at which time employees could use marijuana on their own free time without the fear of losing their job.
While it is almost unanimously agreed upon by all States that marijuana use like alcohol use will not be tolerated at the workplace many question still remain… If recreational marijuana use is legal in a US State than can a person in that State use marijuana outside of work hours? Of course showing up to work high will not be tolerated but will a casual evening smoker be able to keep his/her job in such a State? And will an employer be able to force random drug testing on its employees if they are not breaking State Law? These questions and many more are now being addressed by State governments and by employers as it needs to be clear to employer and employee what the ramifications of marijuana use are. Employers in such States need to revise their work policies to reflect the legalization of marijuana use and make sure all potential hires and current employees understand those rules.
Going forward there will still be confusion over marijuana use and its effects on workplace rules. There are also different interpretations of marijuana related laws and there will be many more laws surrounding the legalization of marijuana and workplace policies. A best practice for all hiring managers and HR departments is to clearly define the expectations and company rules of their employees in regards to marijuana use and clearly outline what the consequences of breaking those rules would entail. It also helps to work with a professional pre-employment screening company to create or maintain compliant hiring practices.
To read more regarding the use of legal marijuana in the Southwest States and how it is effecting the workplace along with how different States are handling this read recent CriminalBackgroundRecords.com press release here.