Marijuana in the Workplace

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California law has legalized recreational marijuana usage now, as well as its medical usage. How to deal with that as an employer has now become a vibrant issue.

Thirty-three States have legalized medical marijuana usage, and ten more have now legalized recreational usage. California did so, in 2016’s Proposition 64, with a vote of 56% to 44% and this gave 40 million people access to legal cannabis.  This vote came 20 years after the State had legalized medical marijuana. Now, California sales of marijuana are expected to reach $7.6 billion in 2020 and California is currently the world’s largest marijuana market.  So, how does this translate into the workplace?

Federal law still prohibits the use of marijuana, while many states and municipalities do not. Under the Obama Administration, a memo was issued, relaxing the prosecution of adults using the product but only IF State law was okay with it.  The Trump Administration recently rescinded that memo, and where national cannabis laws are heading next remains a bit murky.

Here are some questions for the employer to consider: Can an employer fire an employee for using marijuana? How does one establish just cause for such an action? Does your current employment contract specifically prohibit such activity?  Should it? Does the user have a medical marijuana prescription? Are foul odors and smoke disturbing others? Has such usage interfered with the performance of the worker or others?  How dissimilar is this usage compared to the use of alcohol in the workplace?

Employers must now make new rules, and make sure those rules are in writing. Generally speaking, employers are ill-advised to allow recreational marijuana on the premises and should not tolerate it, but how should it be regulated?  That is the big question. To confuse the issue even more, the cannabis edibles market is seeing increased popularity, making consumption difficult to track. Although State law now allows the sale of marijuana in licensed shops, most California cities still prohibit its sale; and driving under the influence laws do include use when driving a vehicle or operating heavy equipment.  State law also still prohibits using cannabis products in public places such as bars, restaurants, parks and streets.

The key to over-indulging seems to pertain to the percentage of THC, the drug’s psychoactive component, within the dosage used. As one can imagine, this conjures up a ton of regulation problems for employers.

Employers must review the local law and extend it into written policy. The State of California does not enforce general accommodation of recreational drug use, and employers need not feel obliged to allow this on premise.  It’s important to know the law, to word it properly in your company policy, and determine how best to enforce it. Lab testing for marijuana use can still be required, if it has been written into employment contracts. If a contract already prohibits smoking on the premises, that may apply to marijuana smoking as well. Prop 64 says employers can lab-test new hires in advance, and refuse to hire, based on the result. (It’s pretty much the same as the urine test for alcohol).

Once you have determined your policies, you can begin to enact them.  Have a dialogue about substance usage with new hires, and have them sign your contracts, knowingly. You can have a zero tolerance policy, spelling out, for example: “No consumption, possession, sale, receipt or transportation of a controlled substance shall occur on these premises, or while engaged in company business. Violation may result in termination.” It’s evolving law, folks, and needless to say, you need to keep abreast of the ever-changing regulatory landscape.