Marijuana Regulations: Key Updates for Employee Handbook Substance Abuse Policies

Employers may be focusing on COVID safety and COVID vaccination policies right now. However, there’s another topic that HR compliance experts are also concerned about: HR legal compliance and marijuana laws. The Biden-Harris administration has pledged to decriminalize marijuana use and reduce or eliminate imprisonment solely for marijuana infractions on a federal level. This pledge has given extra steam to state efforts. Currently, 35 states have approved medical marijuana use, with 15 approving recreational use.

HR Legal Compliance for Marijuana

Employers across the US should note the changes in marijuana laws, as they may also be impacting HR compliance. While very few marijuana usage laws designate employee rights, case law may develop employee rights further. MP’s HR services experts share salient points employers need to know right now.

• Employers may choose not to allow marijuana use in the workplace, even if it’s permitted for medical or recreational use by the state.
• Employers may prohibit impairment by medical or recreational marijuana use in the workplace. This is similar to how they may prohibit impairment via alcohol use.
• Employers may prohibit marijuana use during scheduled breaks.
• Employers are prohibited from pre-employment testing or disciplining marijuana use in some states, including New Jersey and New York. Employers should check their local laws for similar details.
• Employers cannot take adverse action against employees in Connecticut, Illinois, Montana, Nevada, New Jersey, and New York-based on off-duty marijuana use. Employers should continue to check their local laws for similar details if they’re not in these states.
• Some states have unique stipulations for employers to prohibit marijuana use. Montana is a good example. The state allows nonprofit employers whose missions discourage public use of drugs to prohibit marijuana usage by employees. Employers should consult with an employment lawyer to learn if their state laws include similar details.

5 Key Recommendations for Employers

Employers should take a few steps to maintain HR legal compliance with changing marijuana laws.

1. Review.

Review employee handbooks and employee policies with the work location of all employees in mind. If employees now work remotely on a permanent or semi-permanent basis, their home counts as a worksite, as well. Ensure that drug and marijuana use policies don’t conflict with applicable federal and state laws. When an employer has locations in multiple states, it’s a best practice to develop separate employee manuals or addendums for each site. This practice will allow policies to be in compliance, even when state laws conflict or differ. This process might require consulting an employment lawyer.

2. ADA compliance.

Ensure that drug use policies don’t conflict with the rights of medical marijuana patients or create Americans with Disabilities Act (ADA) compliance issues. Employers shouldn’t forget that this should apply to both current employees and job applicants.

3. Develop policies.

Clearly state in the drug-free policy that employees should not use, possess, or be impaired by drugs that are illegal under federal or state law during work hours (if employees work remotely, there should be language in the policy to recognize that being impaired is still unacceptable, whether the employee is in the office or at home). Policies should also clearly state the criteria upon which they will assume an employee is impaired during their workday. Note that local laws may offer specific guidance or rules for this area. If the employer is subject to safety standards, such as Department of Transportation (DOT) regulations, these standards must be spelled out in the policies and accompanied by consequences for failing a drug test. These safety standards supersede local laws, even if they permit recreational use of marijuana. (MP’s HR consulting experts are ready to assist with this task.)

4. Share the updated policy or handbook.

It’s a best practice for employers to share updated employment policies or handbooks with all employees. They should do so via a method that allows employees to refer to them later. Examples of this might include sharing employee handbooks on a company intranet or posting them on the bulletin board in the breakroom. (MP’s HR software assists with this task.) Employers should include an acknowledgment page at the end of an updated policy or employee handbook. They should keep signed acknowledgment pages on file if the employer needs them during disciplinary or legal action. (MP’s HR software assists with this task, as well.)

5. Discipline consistently.

If an employee seems impaired because of recreational marijuana use during the workday, an employer may discipline them. To reduce legal risk, employers must discipline the employee according to the drug use policy. The company must apply this policy in a nondiscriminatory manner. It will also be imperative for employers to document the incident, including the criteria for believing the employee is impaired by marijuana usage.