More states legalizing cannabis will influence HR policies

Dec 8, 2022

A new article published by the Human Resource Executive and authored by Tom Starner discussed the impact of more U.S. states legalizing cannabis use on employers’ HR policies.

Earlier in November, voters in Maryland and Missouri voted to legalize cannabis, while voters in Arkansas, North Dakota, and South Dakota rejected similar proposals. As a result, there are currently 21 U.S. states and territories where recreational cannabis use has been legalized. Moreover, approximately 48% of the U.S. population currently resides in a state where cannabis use has been fully legalized, and over 75% of the population resides in a state where medical cannabis use has been legalized.

According to Jonathan Ash, a partner and practice lead at Fox Rothschild LLP’s Labor & Employment Department at Princeton University, employers across the U.S. should revisit their drug and alcohol policies to ensure they comply with any new laws or updates. “While employers can still prohibit the use and possession of marijuana in the workplace, their testing procedures, including reasonable suspicion testing, may need to be reexamined,” he says. “They should also assess whether their workforce has any safety-sensitive positions, such as the operation of heavy machinery, that may require additional considerations,” said Ash.

Furthermore, Ash added that he does not believe the results of the U.S. midterm elections will provoke significant changes in cannabis use and, consequently, would not pose a challenge to employers. “The people who were using it before are just getting it legally now,” he said. “Where [cannabis] is now legal, I would recommend that employers either stop testing for [cannabis] or ignore positive tests for [cannabis].”

In her interview with Human Resource Executive, Lauren Sobaski, an associate at Fisher & Philips in Kansas City, said that cannabis legalization does not force employers to tolerate employees who are under the influence of cannabis while on the job, nor does it permit its use or possession of it while at work. However, employers will need to be more cautious when making employment-related decisions based on an employee’s positive drug test after lawful consumption off the employer’s premises during off-work hours. This is because cannabis tests can detect cannabis use for days following consumption, with results not necessarily accurately representing cannabis-related impairment in the workplace.

Sobaski also said that employers will need to rely upon the tangible evidence of impairment to address cannabis use in the workplace until testing technology catches up with new U.S. legislation. She also added that employers should train managers and supervisors to detect the signs of cannabis impairment at work. Finally, employees may also need to revisit some of their practices regarding background checks.