by Pamela J. Watkins

New legislation on the legalization of marijuana has employers in both the US and Canada keeping a close watch on the ever changing political and regulatory landscapes.  In the meantime, employers are in limbo wondering if they need to revise current drug testing policies and employee handbooks in states where recreational marijuana use is now permitted.

With marijuana dispensaries popping up on main streets as well as the rapid creation and aggressive marketing of online stores, people will soon be able to purchase marijuana legally across much of North America.

In Canada, the anticipated date of legalization is July 1, 2018.  Likewise, in the US, in 2017, the states of California, Massachusetts, Maine and Nevada voted to approve the use of recreational marijuana.  The use of recreational marijuana is also legal in Colorado, Washington, Oregon and Alaska. Furthermore, dozens of states have approved medical marijuana programs and business is booming.

Being the curious sort, when I was in Seattle last year, I strolled into a dispensary to check things out.  I was greeted by two young men who appeared rather stoned and glassy-eyed themselves. As I walked through the store, I asked them to educate me.  They happily provided me with more information than I ever really wanted to know on cannabis, the diverse varieties and all manner of accessories available and cannabis edibles.

After seeing firsthand how easy it was to purchase, I had to wrap my head around the undisputable fact that marijuana is still prohibited under federal law in the US.  What did that mean for me in my role as an HR Manager?

My search led me to the following conclusions:

  1. States that have legalized recreational marijuana still have exemptions for workplace drug policies.  Employees still can’t come to work under the influence of any substance and they can still be drug tested.
  2. Employees can still be fired or not hired for failing a drug test even if they are NOT impaired.  THC, the psychoactive chemical in cannabis can stay in a person’s system for days. An accurate method of measuring THC impairment is not yet available (think breathalyzer for alcohol).
  3. Workplace Safety should not be compromised by marijuana legalization
  4. Companies should take time to review their current policies and practices.
  5. HR Managers should meet with executive leaders and ensure they understand how new laws may impact their business.
  6. Contact your employment legal counsel if you have questions or need assistance customizing your workplace rules and policy.
  7. HR Managers should be sure all supervisors and managers understand what your policy is and your protocol for testing.
  8. Like it or not, your recruiting practices may be impacted.  Zero-tolerance rules can make it difficult to recruit young employees in certain geographic locations where there are more liberal attitudes toward marijuana use.
  9. Invasion of privacy claims are real.

HR Managers and Senior Managers should also think about how they will manage the following:

  • How will or can you accommodate employees who may need medical marijuana?
  • Should your drug testing policy be based on job title and responsibilities (based on safety needs)?

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