Election 2016 has produced three or four additional recreational marijuana states and three more where medical pot will be allowed. Do employers have to change their drug policies?
The answer: For the most part, no, but be careful.
Voters approved recreational pot in California, Massachusetts and Nevada. It appears Maine voters also approved recreational weed, but the margin was very close and a recount may occur. Medical pot was approved by voters in Arkansas, Florida and North Dakota. In Montana, some restrictions on medial marijuana were rolled back.
This will bring the total number of medical marijuana states to 28 (plus Washington, DC) and recreational pot will be legal in either seven or eight states (plus Washington, DC), pending the results in Maine.
It remains to be seen how these states will codify newly legal marijuana. It’s also not known whether the Trump administration will take the same hands-off approach to recreational marijuana that the Obama administration has. (President-elect Trump has signaled that he’s in favor of states being able to set their own medical marijuana laws.)
In more cases than not, employees can be fired for pot use despite state laws, although there are exceptions.
Most of the 25 states that have legalized medical marijuana don’t provide protections for employee use. These states are the exceptions:
- New York
- Pennsylvania, and
- Rhode Island.
Federal laws require some companies to enforce drug-free workplace policies. Employers have to comply with U.S. Department of Transportation worker drug policies. Also, if a company has a federal contract, it’s required to have a drug-free workplace policy.
Here are more guidelines for employers developed by the American Association of Occupational Health Nurses and the American College of Occupational Environmental Medicine:
- Employees in safety-sensitive positions must not be impaired at work by any substance.
- Employers in or near recreational marijuana states should establish a policy regarding off-work use of marijuana.
- Most state workers’ compensation laws allow reduced benefits when a worker is under the influence when injured.
- Employers should have clear policies and procedures for supervisors to follow regarding identification of potential impairment and referring an employee suspected of impairment for an occupational medical evaluation.
- Employees should receive education about marijuana use at hire and again at regular intervals. Workers must know the company’s policies.
- Provide educational resources regarding the detrimental effects of marijuana use to employees.
Employers should always consult with their HR professionals and legal counsel when developing or updating their workplace drug policies.