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The Top 10 Points To Include In Your Workplace Marijuana Policy

by Karyn H. Rhodes | SHRM-SCP, SPHR on Sep 6, 2022 8:33:00 AM

With laws legalizing marijuana continuing to pass in more and more states, you may be wondering how to deal with employee use. The best approach is to create a marijuana policy that spells out everything employees need to know to comply and keep the workplace safe. What should your policy contain? Here, we’ll cover the details.

In this article, we’ll address the importance of a policy, what it should include, and how to enforce it. After reading this, you’ll be prepared to address marijuana use in your workplace effectively.

Do I need a workplace marijuana policy?

The number of state laws legalizing marijuana use in recent years has grown substantially and now 39 states have approved medical marijuana use and 18 of those have approved recreational use. Add to that, there are some cities that have their own rules as well. For example, New York City bans pre-employment drug testing for marijuana.

In light of these evolving laws, it may be time to address your policies and practices. And that’s true even if your state hasn’t legalized marijuana use because, on a federal level, cannabis is still classified as a Schedule 1 drug.

Whether you want to relax your approach to marijuana in the workplace or continue a zero-tolerance policy because of safety, productivity, or cultural concerns, the key is to have a clearly written policy outlining expectations and consequences regarding everything from uses and possession to impairment.

What should my cannabis policy contain?

When you start thinking about crafting a marijuana policy, there are many elements you’ll want to address to ensure there is no confusion about what’s allowable and what’s not. Here we’ll cover the top 10 points to address in your policy.

  1. Recruiting: While drug testing has been a standard part of many companies’ hiring process, because of greater legalization, some employers are changing their screening policies. Think about whether you’ll continue to test or not or remove cannabis from the screening. And, if you do test, what you’ll do with a positive result, especially since marijuana is the most commonly detected drug in employment tests. For example, will you take adverse action like withdrawing a job offer? Or would you allow proof of a valid license for medical marijuana?

It’s also important to note that, as we mentioned earlier, some states like Nevada or cities such as New York City have laws that make pre-employment marijuana testing illegal except for jobs in certain industries like child care, construction, or emergency response.

  1. On-Site Use: If marijuana use is legal in your state, it’s natural to worry that employees may use it before or even during their workday. And you have the right to prevent this. In fact, none of the state laws in effect require employers to allow employees to be impaired at work or possess or consume marijuana at work or on the job. Make sure you detail what your expectations are and any disciplinary action you’ll take if you have a reasonable suspicion that an employee is using marijuana in the workplace.

  2. Off-duty Use: Perhaps a more complicated issue is how you want to handle employees’ own personal, off-the-clock use of marijuana. Generally speaking, most companies treat recreational use similar to alcohol; employees can use it on their own time as long as they don’t come to work intoxicated or it affects their performance on the job. However, depending on your industry and where you’re located, your state may allow you to prohibit off-duty use.

  3. Medical Exceptions: Since marijuana is approved in the majority of states for medical use to treat conditions such as pain, nausea, and others, you’ll need to think about whether you can reasonably accommodate an employee on the job who is requesting to use cannabis for medical reasons. If you decide that you can, consider if you will require a note from a physician? Keep in mind there could be disability laws you may need to comply with.

  4. Impairment on the Job: As we mentioned earlier, there are no laws that prohibit disciplinary action against employees who are impaired by their use of marijuana at work – even if they have a medical marijuana card. Be sure your policy spells out what steps you’ll take if you have a reasonable suspicion of impairment such as slurred speech, red, glassy eyes, or loss of focus during a conversation, to name a few. For example, will you simply document the signs?

  5. Workplace Possession: Even if your state prevents you from taking any action against an employee for their private use of marijuana outside the workplace, you can still prohibit staff from possessing cannabis in any work location while they’re performing work, including remotely. While this may be difficult to enforce if employees work from home, be sure they acknowledge they’ve read and understand the policy and agree to abide by it or risk disciplinary action.

  6. Social Outings with Clients or Colleagues: When employees attend social events with clients, you’ll need to address marijuana use during these outings if they take place after hours. To some degree, that boils down to culture. Are you okay with employees using cannabis with customers or not? Or do you consider these types of outings as part of your employee’s job and, therefore, a violation of your prohibition at use at work? Either way, be sure to spell out guidelines for workers in your marijuana policy.

  7. Drug Testing: Usually you can still drug test employees. However, there are some states that have limits on testing workers or applicants and protect against discrimination based on legal drug use. Check your state law for what’s permitted and adapt your policy accordingly. And remember that if your employee works in multiple states, you’ll need to take into account the different laws.

  8. Safety Plans: If you’re in a safety-sensitive industry, you’ll want to make sure you spell out your specific requirements for testing within your cannabis policy. For example, if you’re in the transportation industry, you’re required to conduct random drug testing and  test employees at certain points like pre-employment, if there’s a reasonable suspicion an employee is under the influence, or after an accident. Federal contractors have a different set of regulations to follow per the Department of Defense. Be sure you consult the agency rules to adapt your policy accordingly.

  9. Support: In addition to detailing your rules regarding marijuana, include any support you offer employees if they’re struggling with substance use. For example, if you offer an Employee Assistance Program, state that in your policy so they can seek referrals or services if they are having issues that affect their job.

How do I enforce a policy?

Once you create a policy, be sure to clearly communicate it with all employees and put it in your handbook. And be sure to enforce it consistently in terms of disciplinary action to avoid claims of disparate treatment.

If you don’t feel you have the time or expertise to navigate the ins and outs of the dynamic marijuana policy landscape, you may want to consider outsourcing to an HR provider. Read our next article on the top signs that you may need to outsource HR to decide on the best approach for your business.

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