“High” Stakes for Employers Dealing With Evolving Cannabis Laws
Tuesday, May 29, 2018
The evolving legalization of marijuana for both medical and recreational uses continues to cause workplace issues for employers. Nine states and the District of Columbia have legalized recreational marijuana, and 32 states have legalized medical marijuana under varying circumstances. In addition, three more states have 2018 ballot initiatives considering either recreational or medical marijuana uses. Employers need to consider their position as the pendulum continues to swing towards marijuana legalization in various forms.
One aspect that is particularly troublesome is that if employers choose to adopt or maintain a zero-tolerance policy, they may face a shrinking pool of potential employees. For the three states that legalized recreational marijuana in 2017 — Nevada, Massachusetts, and California — saw increases of 43 percent, 14 percent, and 11 percent, respectively, for positive workplace marijuana testing. For some employers, screening for marijuana (among other drugs) is a requirement under federal law based on the services their company provides (e.g., medical personnel and airline pilots). But on the flip side, employers that choose to remove marijuana testing entirely risk serious workplace safety concerns for employees who may show up to work under the influence. With no accepted scientific way to test if an employee is currently under the influence of marijuana, these hazardous conditions can create all types of liability for the employer, depending on the employee’s specific job.
For those employers that have historically adopted a zero-tolerance policy for marijuana, they may soon find that these policies are discriminatory in some states. For example, this year, a Minnesota job applicant filed a federal class action alleging violation of the Minnesota Human Rights Act because of a company’s refusal