The push for legalizing cannabis use started several years ago and has rapidly moved through the United States. Along with changing laws regarding marijuana, employers have had to consider their drug screening and monitoring policies and adapt to the laws governing them.
This trend doesn’t seem to be losing steam.
Employers and HR pros must understand passed laws and be aware of the potential upcoming laws for 2023 and beyond. Only by proactive education can companies maintain drug policies that are fair and legal AND protect the workplace.
Where Cannabis Legalization Stood at the Beginning of 2023
As of January 1, 2023:
- 37 states had legalized marijuana use for medical reasons. These are Alaska, Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Virginia, Washington, and West Virginia.
- 21 states, Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Vermont, Virginia, and Washington had legalized recreational (also referred to as adult-use) marijuana use.
- The Nevada Supreme Court had concluded that, because its state law requires that employers provide “reasonable accommodation” for those medical-use marijuana users (when used off-site or outside of working hours), employees may sue their employers for failing to provide any accommodation.
New (or Upcoming) Laws for 2023
Some states are reviewing new laws for legalizing marijuana use that could affect employers with locations in those areas.
- Delaware is reviewing two bills that could legalize cannabis possession and move the state toward legalized marijuana usage.
- A Hawaii State Representative is planning to file a recreational use legalization bill sometime in 2023.
- Maryland voters passed cannabis legalization in November by a 2-to-2 margin, with legalized possession going into effect on July 1.
- In Minnesota, a bill has been making its way around state legislative committees. The state governor’s proposed budget included allocations to implement a recreational use cannabis program and to implement expungements.
- In Ohio, the Secretary of State re-introduced a recreational use marijuana bill in January. If the Republican-held house doesn’t pass the act, the measure could go to voters in November of 2023.
- Oklahoma voters rejected a ballot initiative on March 7, 2023, to legalize recreational-use marijuana.
- A razor-thin Democratic majority in Pennsylvania’s state House may be able to push through a bill legalizing marijuana (although it would still need to pass in the Republican-led state Senate).
- In South Carolina, two medical marijuana bills have been pre-filed that would allow dispensaries to open and permit state residents to use marijuana.
What Can Employers Do?
With numerous states already legalizing cannabis, and more considering the move, employers must be ready to answer the inevitable question “should we continue to screen for marijuana use?”
For most employers, that answer is “Yes”. However, their drug policy may need to be modernized to fit into today’s society. Here are 5 important things to remember when HR is adapting company policies to handle marijuana legalization.
- Marijuana use still poses risks to the workplace. Just because it’s legal to use marijuana doesn’t mean the negative impact being under the influence can cause in the workplace is neutralized. It’s well-documented that employees who use marijuana are more likely to miss work, cause accidents, and be less productive than their sober counterparts. Companies should not automatically stop screening for cannabis use, especially in specific instances (such as the employee using at work).
- Most states still allow employers to screen for marijuana. If your company is located in a state that has legalized marijuana, you can still screen them for drug use in certain cases. This approach is how employers have been handling alcohol use for years. For example, companies can still screen post-accident or upon reasonable suspicion if they suspect an employee is high or impaired during work hours.
- There are specific products that test for recent use. Some of the most popular ways to screen for marijuana use in the past may not be your best options today. For example, it may be unnecessary to know if your employee used cannabis recreationally last weekend, but you would like to know if they used it on the way to, or at, work. Adding new products like on-site saliva testing and cannabis breathalyzers may help you address problematic weed usage while still respecting the laws regarding its use.
- Creating a policy that covers everywhere the company is located or has employees is essential. As the states continue legalizing cannabis, HR must lead the charge to ensure their organization’s drug policy still serves its purpose, which is to create a safe, productive workplace. Consulting with an employment attorney, talking with your background screening vendor, and hiring a consultant to help craft your policy are all options that maximize its long-term effectiveness and help you stay in compliance with new laws.
- Still screen for other illegal drugs. Dealing with the ongoing shifts of requirements can be enough to make some organizations consider ditching their drug screening process altogether. This isn’t a viable answer. Hiring and employing folks who use other drugs like cocaine, methamphetamines, barbiturates, and opiates can cause big issues in the workplace. No matter what you decide about cannabis screening, it’s still critical for companies to continue testing for other types of illegal substances.
The landscape for marijuana legalization is changing rapidly, with new bills and votes being introduced and taken every year. HR professionals must stay on top of the updates and fold those decisions into their company’s drug screening policy. A proactive, educated approach helps organizations stay compliant with state laws while still doing everything they can to protect the safety and productivity of their workplace.
