The legalization of marijuana: What HR and People teams need to know

Jess Fuhl
Published on 27th May 2020
3 min read

The state of marijuana in the United States is complicated – and its relationship to the workplace even more so.

While it remains illegal under federal law, the legalization and use of medicinal marijuana is picking up pace at a state level.  33 states across the US have now enabled legal access for medicinal purposes, with at least 11 states and D.C. legalizing it for recreational usage, and over 26 states decriminalizing small amounts of it.

With new bills coming into effect in 2020, and policy constantly changing, this is an evolving topic that HR and People teams need to address, yet many US employers admitted they’re ill-equipped to do so. 

Furthermore, guidance and policy will vary from state-to-state, making it important for employers to get a better grasp on how this will impact workplaces today.

We shed light on the changing laws for HR and People teams.

What does the legalization of cannabis mean for your people? 

The legalization of medicinal marijuana varies by state but generally means that cannabis can be used for qualified medical conditions. In 14 states where medical marijuana is legal, registered users have legal employment protection, meaning that employers cannot discriminate against them. 

Recreational usage refers to the legal ability to purchase marijuana and consume or grow it at home – and this also varies by state. 

Decriminalization means that possessing a small amount of marijuana for personal use is not generally considered a state crime, but a civil or local infraction, or only counts as a low-level misdemeanor with minimal jail time.

Will more states legalize marijuana in the future?  

It is highly likely that more states will legalize a form of marijuana usage. In 2018 alone, 21 states reviewed bills that would make adult marijuana usage legal, and in 2019, a senator proposed a bill that would make it legal at the federal level.  

What things should HR and people teams consider?

There are several factors that HR and People teams need to consider about marijuana in the workplace. SHRM advises that employers consult with legal and compliance experts, either in-house or externally, in order to determine your approach before setting new policies and rules in place – citing an example from Connecticut where an employer was sued for discrimination when they denied employment following a positive drug screen in a state where the candidate’s medical marijuana usage was lawful. 

What do HR and people teams need to do?

While the course of action will depend on your business, its location, and the industry that you’re in, SHRM has issued general guidance, laws, and precautions to be mindful of. Most importantly, your company’s “drug-testing and screening practices must comply with emerging laws in relevant states, even though all marijuana use is still illegal at the federal level”.

In some states, particularly those that cover medical marijuana patients under disability laws, you will need to establish whether positive drug tests are connected to medicinal use before deciding on employment. 

If your employees seek accommodations for medical use, make sure that they have appropriate medical certification and won’t partake on the job or pose a risk in the workplace.

Regardless of state law, federal rules require substance testing, including for marijuana, of some employees such as truck drivers. Companies with federal contracts and grants, as well as federal agencies, will need to have and enforce a drug use policy.

So, what steps can HR and people teams take to get ahead of the issue?

Determine a policy

Many companies are finding it helpful to adapt the same rules that apply to alcohol to address the recreational cannabis challenge – what employees do in their personal time is private but they shouldn’t come to work impaired or partake while on the job. 

For employees with medical conditions, ask them directly about the accommodations they need in the workplace and request discreet usage that will not affect job performance.

If people are managing issues like chronic pain, for example, treating the condition could improve their job performance and a blanket ban would likely hinder it.

SHRM has a resource list of policies, laws and key information that HR teams can use when addressing their policies.

Consider your approach to pre-employment drug screening

Drug screenings are common in the US, but pre-employment screenings are dropping, even if employers aren’t advertising it publicly. Many employers don’t want to take the legal risk of discriminating against someone who may be engaging in medicinal use, and they also want to avoid disqualifying high-quality talent who use for recreational purposes where it’s legally permitted.

Whilst post-accident screenings are often required by insurance, companies like Apple, for example, have eliminated the practice unless the role possesses safety risks.

Communicate changes or expectations to employees

Communicate your approach clearly with employees. If your organization decides to remove existing policies that ban usage to invite people to share their need for medical accommodations, make this clear to employees and let them know what the next steps are.

Be clear about on-the-job expectations related to usage, safety, performance and outline the consequences or actions that will be taken if impairment or performance becomes a challenge.

How are HR and People leaders of today preparing for the challenges of tomorrow? Download the research report ‘The changing face of HR’ to find out.

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