Dealing with Marijuana in the Workplace

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Dr. Jeanette Winters
11/12/2019

Dealing with Marijuana in the Workplace_Marijuana plant tree growing in pot

A topic of great interest in the HR community is the issue of marijuana and its implications in the workforce. Tammy Henry, Data Facts’ Vice President of Client Success and someone very knowledgeable about this topic agreed to chat with us, answering several readers’ questions. I asked her five questions on this hot topic and evolving subject. I’ve tried to capture her responses fully in blue; however, this is my interpretation of our conversation.

1. From California - We drug test all our manufacturing employees, which has also included traditionally included testing for marijuana. Now that's it technically legal, can we still consider a positive drug test reason enough to preclude them from employment consideration?

“California is a slippery slope. While it is still illegal according to federal law, what employers want to remember in this state, is that if they are going to get sued, this is the state most likely to test the limits. I recommend to my clients to work with their employment attorney to determine if they are going to test for marijuana (pre-employment) to ensure that they are taking the stance the company wants them to take (either conservative or liberal) and screen or not screen from there. What I do tell employers though, is that even though they may not test pre-hire, testing based on reasonable suspicion if the employee appears to be impaired while on the job and poses a risk is permissible. Most employers in CA are no longer testing for pre-employment, but are now using reasonable suspicion to test if they believe the person is impaired.”

2. An Arizona reader asks: Medical marijuana is legal in our state. We worry that someone using marijuana could be sufficiently impaired, necessitating that we bar them from working in what can be a dangerous manufacturing environment (gases, chemicals, and lasers). How should we address this?

“It’s hard in these states. I would say first rule of thumb is to have a policy to address drug use, stipulating the expectation that there not be any impairment while at work. The same answer as given to our California reader applies. It’s all about if the person is impaired. Employers can still coach or terminate someone that shows up to work impaired that may cause a risk to the employer, persons, brand, or monetary means (accident, etc).”

3. How should we address the issue of marijuana in our handbook? We are a drug and alcohol-free campus.

“I tell every employer, large and small; you should have a policy about drugs and alcohol. You need a policy that clearly states your company’s stance to ensure that you clearly and regularly communicate that policy to new candidates and current employees alike.”

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4. Our CEO is worried that even though marijuana is legal in our state, it's still against federal law. How should I advise him?

“Your discussion with your CEO and legal counsel should be surrounding the risk that the company wants to accept surrounding this subject. I do see some clients taking the stance that regardless of state law, they are going to follow federal law. This is an ok decision, but you have to be prepared that at some point, the likelihood that your company is going to get sued over this policy in a liberal state where it is legal is pretty high. On the other side of the coin, you have the risk of not testing and at the same time not having a policy that says you’re a drug-free work environment that precludes impaired individuals from coming to work potentially causing harm to the organization either through an accident, brand and reputational risk, or harm to others. The advice is going to be different for each company based on their culture and the appetite for risk.”

5. An applicant advised that she uses CBD oil - noting too that it's legal in all 50 states. Is this true? Isn't CBD an extract from marijuana?

“CBD oil, while derived from the cannabis plant, itself is not illegal. What is illegal is the THC content that the product contains which is the substance causing “impairment” in a person. The DEA (under federal rule) has said that THC, cannabis, marijuana are illegal and are considered a Schedule I drug. We have seen recent movement on this issue. In July, the DEA specified that .01% THC is a Schedule V drug due mainly to the FDA’s recent approval of Epidiolex (a non-synthetic cannabis-derived drug used to treat severe epilepsy). This is the first time that the DEA has applied any level of “legality” to THC doses. We expect that with this being such a hotbed issue, Congress will get involved. Most of us watching this topic closely anticipate that there will be a move to decriminalization over the next five years.

The other misnomer regarding CBD oils today, while considered not THC laden, aren’t regulated for testing and content. There has been no formal testing developed by the federal government to determine what dose of THC (if any) is acceptable or what levels would render someone impaired. Therefore there are no clear regulations on THC levels contained in CBD oils, only that THC itself (outside of the .01%) is illegal. Because there is no testing for manufacturers or regulations on production, CBD oils in today’s market could contain higher levels of THC, then the company states. Further, there is no watchdog at the moment to ensure that consumers aren’t duped into using something that has a higher content of THC than the label indicates.”

Ms. Henry did conclude our discussion, noting that marijuana falls to the “bottom of the drug testing totem pole” compared to opioids. We agreed that there is much ambiguity relative to cannabis use, even in those states where it has been legalized for both medicinal and recreational use. Your best bet is definitely to confer with your employment counsel for appropriate organizational policy. Our sincere thanks to Tammy for sharing her insight into this complex and developing topic.