What do legalized marijuana laws mean for HR professionals? We recently posted an article about this that was specific to mental health professionals, but let’s explore what this means for the bigger picture of employers.
Some states, including Arizona and Delaware, prohibit an employer from terminating an employee due to a positive drug test for marijuana. Laws in Arizona, Delaware and New York allow employers to enforce workplace policies prohibiting employees from using drugs on the job. While not addressed in all state statutes, it seems very unlikely these laws would be interpreted to allow an employee to work while impaired by marijuana. But determining whether an employee is impaired on the job can be a challenge, as marijuana is metabolized differently than alcohol and current drug tests are unable to determine whether use occurred in prior hours or days.
Numerous states that provide for medicinal use of marijuana, however, do not prohibit employers from taking adverse action against employees for off-duty permissible marijuana use. In California, for example, an employer does not have to accommodate an employee’s off-duty use of marijuana, even if it is for medicinal purposes, and could terminate an employee for such use.
Steve Clark is chief executive of the Fayetteville Chamber of Commerce and a former Arkansas attorney general. Clark said states that legalize marijuana send a mixed message to employers, who can be expected to err on the side of caution and maintain drug-free workplaces. He added legislators failed to clarify many workplace issues such as what happens in workers’ compensation cases. If someone is injured at work and is prescribed marijuana instead of a pharmaceutical painkiller, does the employer have to pay for his medical treatment. For business, the safest course will be to pre-empt the question by insisting on a drug-free workplace, he said.
Up until this point, federal law enforcement officials have adopted a “hands off” policy in states where marijuana has been decriminalized. However, newly appointed U.S. Attorney General Jeff Sessions indicated he’s considering reversing that practice.