HR Legalist

States Turn to Greener Pastures: What This Means for Cannabis and the Workplace

Last month, New Jersey joined the budding list of states to legalize recreational cannabis. In fact, as of this post, only three remaining states do not permit either recreational or medical cannabis use (with the federal government’s ongoing “Schedule 1” controlled substance designation providing a notable fourth buzzkill). We’ve previously reported on the impact the growing acceptance of cannabis has had in the workplace, but as the smoke continues to clear, employers should continue to evaluate whether they need to mellow their policies regarding hiring, drug testing, employee conduct (on or off duty), and accommodating disabled employees.

It is tempting to say that employers would be best served treating cannabis use by employees like they treat alcohol, but that would be too easy. While, as with alcohol, employers are not required to permit employees to indulge while on the job—at least not yet—certain jurisdictions, such as New York, explicitly protect an employee’s ability to recreationally consume cannabis while outside of work. These protections for off-duty use are trickling into the hiring process, as some jurisdictions, such as Philadelphia, outrightly prohibit pre-employment drug screenings for marijuana (subject to certain exceptions). Or, if not outrightly prohibited, other jurisdictions make reliance on such a risky endeavor.  For example, New Jersey law bars employers from rejecting applicants “solely” based on a positive marijuana test result. Given the patchwork of laws and regulations, employers may want to reconsider their policies regarding pre-employment drug screenings for marijuana and conduct such testing only where legally required.

Safety and workplace culture are still legitimate employer concerns, so employers generally remain free to test their employees where there is suspected impairment while on the job. But even if an employer suspects current impairment they should exercise caution. Let’s face it, we all know someone who just naturally has the looks and mannerisms of Shaggy from Scooby-Doo, but subjectively “looking the part” isn’t enough to justify a drug test for cannabis in places like New York, for example. There, an employer must identify specific articulable symptoms of impairment (as opposed to use) that negatively impact an employee’s ability to work or interfere with safety. Thus, simply smelling of marijuana, by itself, would not justify disciplinary action, whereas erratic operation of machinery might. Furthermore, New Jersey aims to remove employer discretion altogether. As part of its recreational cannabis rollout (and recognizing that traces of cannabis can remain in an employee’s system without the user being actually impaired), New Jersey requires businesses to use a certified Workplace Impairment Recognition Expert (“WIRE”) before taking any action based on a positive drug test. (The details for how to attain a WIRE certification have not yet been unveiled.) Be that as it may, the current trend is that workplace cannabis testing, while still legal, has less and less practical usefulness.

In addition, relying on the appearance or mannerisms of an employee could cause employers to land in hot water under the Americans with Disabilities Act (ADA).  After all, characteristics that some managers associate with cannabis use may actually be characteristics associated with a protected disability. Given that possibility, if an employer suspects an employee is impaired at work, they would do well to let human resources do the talking so as to avoid inadvertently asking impermissible disability-related questions. Furthermore, cannabis (unlike alcohol) has multiple legitimate medical uses, and some disabled employees may need to use cannabis to manage the symptoms of their disability, alleviate pain, or stimulate appetite. Under current law, no employer need to accommodate workplace marijuana use or possession as a reasonable accommodation. However, many jurisdictions explicitly protect an employee’s ability to use medicinal marijuana, and employers may need to accommodate an employee’s off-duty use (at least, in the absence of provable workplace impairment). Regardless of the jurisdiction, taking adverse employment action based solely on an employee’s off-duty medicinal marijuana use is risky at best. Finally, even when a cannabis-related accommodation is not reasonable or would pose a hardship, employers remain prohibited from retaliating against employees who request accommodations in good faith and would be obligated to explore potential alternative accommodations as well.

As always, we will continue to provide updates on this ever-changing topic. In the meantime, employers, especially multi-state employers, are encouraged to consider reviewing their policies, procedures, and handbooks and making any necessary updates with the assistance of employment law counsel.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.