Ask an HR Expert: Legalization of recreational marijuana

Today’s question is: “How will the legalization of recreational marijuana impact employers and what should be done differently with drug testing programs?”

Hello and thank you for joining me for another episode of Ask an HR Expert. My name is Katie Stewart, M.A., PHR, CLRL with Tandem HR. The question we’re answering today is “How will the legalization of recreational marijuana impact employers and what should be done differently with drug testing programs?”

I’m going to address this topic specifically for the states of Michigan and Illinois and the impact on those employers. Both states have made it legal for individuals over a certain age to possess and use a certain amount of marijuana. In the past, both states had drug-free workplace policies. This forces employers to ponder “how do I continue to maintain that drug-free workplace with recreational marijuana now legal?”

The acts do prohibit discrimination against individuals that are already employed by you as well as future applicants. It prevents you from discriminating against them because of their use or possession of recreational marijuana. Now people ask, “Well isn’t recreational use of marijuana still illegal at the federal level?” Yes, it is. But states have been given the authority and right to legalize recreational use and the federal government hasn’t pushed back on that.

So, what type of protections does this law provide to employers?

Nothing prohibits an employer from adopting a zero-tolerance policy in their workplace. This means that employees cannot be under the influence or have marijuana within their possession at the workplace. This should be looked at much like the use of alcohol in the workplace. We can’t discriminate against an individual for what they do in off-duty hours or outside of our workplace, but we still have control when the individual is under the influence in our workplace or even when the individual is on call as defined by the law.

Also, the act does not prohibit employers from randomly drug testing with reasonable suspicion if you have an appropriate program in place or pre-employment drug testing. However, you must be able to ensure you do not discriminate against them for their off-duty conduct. Drug tests today can detect marijuana that has been in the system for hours, weeks or even months ago. The challenge is you can’t solely rely on drug testing to make these determinations of immediate ‘under the influence’ like you could for other type of substances.

Provide a reasonable suspicion checklist to determine the next steps.

  • What is their speech like?
  • How is their behavior?
  • Are they irritable?
  • Do they slur their words?
  • Are they doing any of these irrational type of things within the workplace?
  • These questions will help determine if a drug test or even an alcohol test is necessary in this situation.

There are a couple of decisions that employers need to make to determine if the risk is too high to even consider keeping your drug test policies in place, especially for pre-employment. Make sure that your current drug testing program aligns with your state law. If you have to follow DOD regulations, if you are a federal contractor, or if you are in certain health care facilities, some of these laws may differ. Please make sure that you are aware of these laws and how they apply to your specific industry.

I hope you have found this information useful and again thank you for joining me for Ask an HR Expert. Have an HR question for the Expert? Ask us today!


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