About three years ago, Washington and Colorado voters legalized recreational marijuana, throwing our states into a grand experiment. Since then, two more states and several municipalities have followed, while many others have sat back and observed the process.
Washington employers have had to incorporate these changes into their policies, and these policies may still be evolving. It’s certainly a conversation that often takes place when employers gather, and it’s always helpful to know what others are doing.
When HR policies & legalized marijuana collide:
The Society for Human Resource Management (SHRM) recently conducted a survey of over 600 human resource professionals, and the results provide a glimpse into how other companies are handling the marijuana dilemma.
In states like ours, where marijuana use is legal:
- 94% of the respondents reported that they have a formal written substance use policy in place
- About one half of the respondents said they conduct pre-employment drug testing for marijuana use
- 82% have a zero-tolerance policy for marijuana use while performing work
- In situations where an employee does test positive for marijuana, the most common disciplinary action cited was termination under the zero-tolerance policies.
It seems clear from SHRM’s survey that while citizens’ views on marijuana use may have softened somewhat, employers’ views still remain fairly strict. Many companies continue to rely on the federal guidelines.
The survey results point out the difficulties that multistate employers face with conflicting regulations, and the simplest policy for them seems to be to hold a firm line on prohibiting marijuana use.
The legality of zero tolerance policies in marijuana-friendly states:
Oftentimes, employees and job seekers question the legality of employers’ zero-tolerance drug policies in states where marijuana has been legalized. It’s interesting to note that just recently, the courts once again sided with employers in this debate.
In November 2015, in the case Swaw v. Safeway, Inc., Safeway tested its employee, Swaw, for drugs and Swaw’s test results came back positive for marijuana. Swaw was terminated per Safeway’s drug-free workplace policy.
Swaw — who had a valid prescription for medical marijuana — sued Safeway, claiming the company discriminated against him based on his disability
The Court dismissed all of Swaw’s claims, stating that:
- Employers do not have to allow medical marijuana in the workplace
- Medical marijuana is still a controlled substance under federal law
In addition, they dismissed Swaw’s claim of discrimination, as users of an illegal drug are not a protected class. So, for now, businesses in Washington seem to remain on solid ground.
Views on legal marijuana are changing:
We do know, however, that views on legalized marijuana are changing. A 2015 Pew Research Survey showed that:
- 53% of Americans think marijuana should be legal
- 68% of Millennials support marijuana legalization
As Baby Boomers retire and our workforce becomes younger, it seems likely that companies’ policies on this subject will morph to accommodate the views of a changing workforce.
Legal marijuana & on the job safety:
On the job safety is a big issue when it comes to legal marijuana, but the ability to test for impairment remains a roadblock.
Washington State University researchers believe that within a year they will develop a portable marijuana breath test. The test will be able to check for delta-9 THC, the psychoactive component of cannabis that creates a high. (Currently, we can only test for the component of marijuana that stays in our systems for weeks, which isn’t an indication of active impairment.)
Such a test would put marijuana impairment onto a similar plane as the tests we use now to detect inebriation from alcohol. This could allay many of the concerns that businesses have in safety-sensitive situations.
The decriminalization and legalization of marijuana is definitely a changing landscape, and employers don’t have roadmaps that lead the way.
Right now, all we can do is keep this important conversation going, share best practices, and learn from each other as we move forward.