Shifting Marijuana Laws Daze Employers

As of May, 30 states and the District of Columbia allow some form of legalized marijuana, including eight states that allow marijuana use without a doctor’s prescription. This year’s midterm elections could bring another wave of legalization as voters in six states decide on marijuana ballot measures. For employers, the increasing access to legal marijuana is posing new challenges.

While voters have moved to legalize marijuana in certain states, it remains illegal on the federal level. Because of this discord between state and federal law, the Society for Human Resource Management (SHRM) notes that employers across the country need to review their existing policies and determine for themselves how to navigate federal and local laws.

Hardware Retailing consulted SHRM and Jim Reidy, an attorney with Sheehan Phinney and director-at-large for SHRM in New Hampshire, where the possession of small amounts of marijuana was recently decriminalized. Reidy and SHRM offer insight on how shifting marijuana laws are impacting the workplace and what retailers should know to safeguard their operations.

1. A One-Size-Fits-All Policy Isn’t Ideal
   SHRM advises employers to review their company policy regarding marijuana use. Reidy recommends employers craft workplace policies that cover specific positions, especially those that involve customer interaction or operating heavy machinery or specialized equipment. “Employers who manage safety-sensitive positions will have to tailor policies to those positions and their own expectations. Policy also needs to reflect the company’s culture and performance expectations,” he says.
2. Testing Poses Problems
   Reidy says that testing for marijuana and other controlled substances is possible via hair, urine and blood tests. Employers are legally allowed to test for controlled substances whenever they wish but some testing methods do pose potential problems, he says. “Employers can test post-offer and pre-employment, but based on reasonable suspicion, they can also test after an accident or randomly,” he says. But because marijuana can stay within a user’s system for up to a month after being smoked or ingested, he says it’s difficult to test for impairment at specific times.
3. Employers Need to Take Action
   SHRM suggests retailers review their existing workplace policies with legal counsel or local organizations to determine if they’re following state and federal law while maintaining a safe and welcoming workplace for employees and customers. “Whether it’s used for medical or recreational purposes, applicants and employees in increasing numbers will likely use marijuana at some point. Employers need to look at their policies and determine what legal obligations apply,” Reidy says.

Jim Reidy has legal experience pertaining to labor and employment law with an emphasis on assisting employers to effectively avoid and defend against disputes. He has represented several organizations ranging from multinational corporations to not-for-profits and family-owned businesses.