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Cannabis in the Workplace: What Employers Need to Know

Though cannabis is illegal by federal government standards, 21 states (including Washington, D.C.) have legalized it for recreational use and 39 states (including Washington, D.C.) legalized it for medicinal use. However, there has always been a blurred line when it comes to cannabis in the workplace.

What Employers Need to Know About Marijuana in the Workplace

1. Understanding Cannabis Legalization

At the federal level, marijuana is classified as a Schedule I drug under the Controlled Substances Act, which means that the federal government defines it as a substance with no medical use and high potential for abuse. However, states have enacted their own laws that have legalized it medicinally and/or recreationally.

Additionally, President Biden released a proclamation in late 2022 that requested the Secretary of Health and Human Services and the Attorney General to research and analyze how marijuana is scheduled under federal law.

So, which level of law should employers follow?

Federal law precedes state and local laws, however, the federal government expects states to enforce their own marijuana laws. Generally, the Justice Department often declines to pursue cases where individuals comply with state laws.

2. Developing Workplace Drug Policies

Workplace drug policies are often dependent on the nature of the business industry. For example, those working in manual labor industries (i.e. manufacturing, construction) are more likely going to establish a zero-tolerance policy than administrative roles.

Whichever approach you decide to take, it is important to ensure you take all precautions in creating a workplace drug policy (i.e. seek legal review from a licensed attorney who specializes in that area of law).
To create a workplace drug policy, you should consider the following items:

  • Defining clear use and possession parameters
  • Providing access to support and resources for employees with substance abuse issues
  • Establishing processes for testing, including pre-employment screening and post-accident assessments
    Addressing positive results and/or legal implications (i.e. conviction, arrest)
  • Implementing proper training for management

Cannabis isn’t the only drug you need to address, either—learn how to craft a company alcohol policy.

3. Considering Medicinal Marijuana Use

Another legal consideration is state disability laws protecting employees from discrimination and enforcing reasonable accommodations for medical marijuana use. Though there are some exceptions for medicinal marijuana, such as safety-sensitive roles or federally regulated positions, employer drug testing and screening processes must comply with evolving state regulations.

For example, in states with medical marijuana protections under disability laws, employers should review drug testing connections to medical use before making employment decisions. Another example is ensuring proper medical certification is provided for reasonable accommodation requests and establishing clear policies on when it is acceptable to use (i.e. off-duty).

4. Defining the Difference Between THC and CBD

CBD, also known as cannabidiol, and THC, also known as tetrahydrocannabinol, are two of the natural components found in cannabis plants. Both interact with the endocannabinoid system, which controls bodily functions and processes, including sleep, mood, appetite, memory, and reproduction. However, THC is the component that causes the psychoactive effect that is often the focal point of debate in the legality of using cannabis in the workplace.

CBD is most commonly used to treat conditions, such as seizures, inflammation, pain, mental and mood disorders, inflammatory bowel disease, and migraines. THC can also be used to treat medical conditions, such as muscle spasticity, glaucoma, insomnia, pain, and nausea. However, both can cause side effects, such as fatigue, dizziness, slower reaction times, coordination problems, memory loss, and confusion.

It is important to know the difference between THC and CBD, the way it is used medically to treat various conditions, the impact it has on the body, and the influence this information has on your workplace drug policies.

5. Weighing Workplace Risks

It shouldn’t come as a surprise that marijuana use can negatively impact your organization’s bottom line—lower productivity, higher workers’ compensation and unemployment claims, higher turnover rates, and a higher volume of lawsuits.

In fact, a study by the National Institute on Drug Abuse reported that employees who tested positive for marijuana experienced 55% more industrial accidents, 85% more injuries, and 75% more absenteeism compared to those who tested negative.

Unfortunately, employers who establish zero-tolerance policies in states who have legalized marijuana are experiencing employment challenges. For example, a Colorado construction company had to seek out-of-state employees.

Though Cannabis Awareness Month is a great reminder to review and revamp your workplace drug policies, it is even more important to be proactive by remaining in compliance with local, state, and federal regulations. With the tight labor market and uncertain economy, utilizing a talent management software like Namely can help ensure you have access to top talent, background checks, and ways to track performance.

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