Nearly 75% of the country have some degree of legalization of cannabis – either medicinally, recreationally, or both – which begs the question of how employers are responding to the rapidly changing laws in their regions.
By Election Day, November 3, 2020, a total of 36 states, including the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands, have approved comprehensive medical cannabis programs. Of these, 15 states have legalized adult marijuana. In fact, leisure is legal in our nation's capital, Washington D.C., where you'll find a robust legal market.
Despite all of this, marijuana is still illegal nationwide. This presents many unique challenges for employers who adhere to drug testing guidelines and who have concerns about productivity and safety in the workplace, as well as problems for employees who may be denied the use of cannabis if they are responsible users and otherwise fully qualified.
How are these problems resolved? Can a common basis be achieved between employees and employers?
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Medical use versus recreational use
When it comes to denial of employment due to cannabis use, a very important distinction is whether the patient is using it for recreational or medical purposes. Marijuana can be prescribed for a variety of pre-approved conditions under state laws. For example, if someone uses marijuana for panic attacks, it may warrant random availability and use for the whole day.
It is important for employers to know if any of their employees are medical marijuana patients. and whether there are government laws protecting their uses and protecting them from legal and employment implications. Dismissing someone for using statutory medication is a cause for legal action.
"A company needs to be careful when disciplining medical marijuana users," Reischer said. “Several states have specific laws that protect medical cannabis patients from discrimination in the workplace. Typically, employers can request drug testing before hiring and at random times, as long as there is no discrimination against medical marijuana users who are legally allowed to use cannabis on medical grounds. "
In recreational markets, many employees would argue that cannabis use should be allowed outside of business hours, adding that employers do not mind what they do in their free time, as long as it does not affect workplace performance, as long as they have a drink after work . Good argument.
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Safety at work
When it comes to employee cannabis use, safety is one of the most common concerns of employers, especially in jobs involving driving, heavy machinery, or anything where there is physical contact between the employee and a client (e.g., a physiotherapist , Nurse, doctor, chiropractor, masseuse, etc.).
Another issue with this in mind is the payout of employee compensation and how that would affect employee cannabis use. For example, in Wisconsin, if an employee is injured in the workplace while drunk on a controlled substance, including cannabis and other prescription drugs, the employer can reduce employee compensation benefits by 15%, with a maximum allowable reduction of $ 15,000 . In Michigan, workplace injuries sustained while being intoxicated are not covered at all by the employee's compensation.
"Employers need to understand their rights and responsibilities regarding drug testing as state laws move," said David Reischer, attorney and CEO of LegalAdvice.com. "Marijuana is still illegal nationwide, and employers are generally allowed to have a drug-free workplace and enforce zero-tolerance policies."
Interestingly, a study published in the Health Economics Journal found that states with medical cannabis programs decreased employee compensation claims by 7%. We're not sure why this noticeable drop occurred, but it is possible that employees chose to self-manage their work-related complaints and use marijuana to treat their work-related complaints rather than claiming employee compensation.
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Consumption on site
This is an interesting topic and is of course 100% at the discretion of the employer. And while you might expect the answer to be a resounding "no," many employers actually allow their workers to use cannabis during breaks if it helps boost creativity and productivity.
According to Steve Nelson Jr., owner of the Denver Cannabis Club iBAKE, allowing on-site consumption helps build a relationship with your customers while creating a relaxed environment for your employees.
"We found our members a little concerned (and wondering) why about hiring non-smoking workers," said Nelson. “We also found that most employees have no control over their work. It's not for all companies or for all employees, ”he said. “(Employers) need to carefully consider what … your employee will do. Some tasks cannot be performed when they are high. "
Given that this is neighboring California, the largest cannabis market in the world, with many transplants happening on the west coast, people have been keeping an eye on Arizona for the past few years. This month, recreational marijuana was legalized in Grand Canyon state, and overall there appears to be a traditional approach to cannabis use in the workplace.
"It is now being treated like any other legal drug in Arizona," said attorney Bob St. Clair. "Similar to alcohol or cold medicine." St. Clair said he expected employers to take a similar approach to their employees when using marijuana for recreational use.
"The rules for employer jobs will not change primarily because of the leisure aspect," he said. Prop 207 gives employers the right to a drug-free job. An employer is not required to allow or account for use, consumption or possession at work. "Moderate use makes more sense than anything," said St. Clair. "If you show up at work and you are obviously high, you are sent home, just like if you show up at work and you are obviously drunk."
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Answer from the employer
Some employers do not hesitate at all and have zero tolerance policies against cannabis use, no matter if 24/7. If the employee fails a random drug test on any of these jobs, they will either be disciplined or fired.
“As an employer, I have no plans to loosen drug policies in and around my work environment as we advance in this new era of cannabis tolerance and legality,” said Abtin Hashemian, owner of a Los Angeles-based Subway franchise. "(Against) the backdrop of California legalization, I had to terminate some of our employees due to performance issues related to cannabis poisoning during the time."
Others take a more personal approach and only punish employees for cannabis use when it is clear that their job performance has declined. According to Derek Riedle, owner of cannabis lifestyle company Civilized, we can safely consider this the banking dilemma. There are ways around this, but for the most part, employers want to play it safe and keep their drug policies in the workplace as strict as possible. In some cases, it is better for insurance reasons and the bottom line.
"We are seeing more and more employers revising their workplace rules regarding cannabis. However, since this is still illegal at the federal level in the US, most companies still have a zero-tolerance policy," said Riedle. "It is more common for employers to relax regulations for patients with a valid medical cannabis card, but even that is not guaranteed."
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Tips for employees
As a pot smoker, you have to accept the fact that there are some jobs you can't get without a drug test, even if marijuana is legal in your state. Other legal substances, such as alcohol, can also be banned. In some regions, even cigarettes can be a workplace policy violation. For example, many California fire departments do not hire cigarette smokers because it can affect their health and performance at work.
If you work in a place that doesn't do drug testing, you're pretty golden as long as productivity and performance stay the same. When it comes to medical patients, staff should consider consulting an attorney to determine what their rights are and how best to proceed. Whenever possible, find employers who are cannabis-friendly so you don't stay high and dry through a surprise drug test and firing.
Whether you're a worker or an employer, the relationship between cannabis and the workplace can be complicated. There's no one-size-fits-all approach, but the good news is that more and more states are implementing laws to protect cannabis use from discrimination in the workplace. On the flip side, many employers are finding that off-hours cannabis use does not have a negative impact on workplace performance, and so are changing their drug policies within the company for the better.
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