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[Video Blog] Business Owners Must Make a Marijuana Decision

Posted: August 8, 2018

Of course you have heard of medical marijuana or recreational marijuana and attempts at the Federal level to make marijuana legal.  There are debates on both sides about whether marijuana should be legal.  No matter what your position or opinion, as a business owner or manager/executive – your company has decisions to make now.

Just a few months ago, Oklahoma has voted to legalize medical marijuana, making it the 30th state to do so.  Nine states and Washington, DC have recreational medical marijuana laws.

Do you know what the laws in your State say?  As a business owner or business manager/executive you need to have an understanding of these State laws in areas you do business.  As an example, did you know that in several states with medical marijuana laws smoking pot is still illegal.  Some of the states with medical marijuana laws only allow low level doses of THC often called CBD or cannabidiol.  Delta-9-tetrahydrocannabinol (THC) in the major active ingredient in the marijuana plant and has the psychoactive effects. Products containing cannabidiol contain low levels of THC that do not have the effects of getting high (psychoactive effects). 

Cannabidiol (CBD) has gained popularity in the medical marijuana industry because it has demonstrated positive medicinal benefits without the psychoactive effects normally associated with marijuana.  CBD comes in several forms:

  • Hemp Products
  • CBD Oils
  • CBD Tinctures (extracts less concentrated then oils)
  • CBD Topical Products
  • CBD Vaporizing
  • CBD Sublingual Spray
  • High CBD Marijuana Strains (best known – Charlotte’s Web”

Getting back to what decisions a business owner must make regarding marijuana; you need to know the laws to make decisions.  If you operate under DOT regulations for drug and alcohol testing, there is no option – marijuana is prohibited under Federal law.  There is no question and no option regarding this.  Outside of Federal DOT laws, this is where important discussion and decisions are needed.  You must have written policies about use of illegal and legal drugs.

Many of the State medical and recreational laws allow an employer to continue to operate as a drug free workplace including prohibiting possession and use of marijuana even when medically legal or recreationally legal.  Even in California, court cases have affirmed that an employer maintains the right to discipline employees even where the marijuana use is recommended by a physician.  It not a violation of California laws to terminate an employee based on their use of marijuana, regardless of why they use it.  But caution is advised in all states and expert legal advice is always recommended. 

Employers who do not have a well-documented drug free workplace policy including specifically addressing marijuana, can possibly expose themselves to allegations of discrimination and risk increased exposure to additional liabilities.

Whether you think marijuana should be legal or not, what is the right policy for your business?  We hear often the statement “I don’t care if my employees smoke pot on the weekends.”  The problem is that there is currently no way to tell if the employee smoked pot on the weekend or twenty minutes ago on their lunchbreak.  You need a clear and definitive policy.

No matter what your belief, this is not an easy subject to deal with.  Perhaps you have an employee with a disease in a non-safety sensitive position and the only thing that keeps this employee functioning without pain is medical marijuana.  On the other hand, keep in mind that THC is a chemical and use of this drug plays a role in normal brain development and function.  A few of the short term effects may include:

  • difficulty with thinking and problem-solving
  • altered sense of time
  • impaired memory

Certainly these effects would not keep an employee as productive and safe as an employee not taking these chemicals.  Here are our five strong recommendations:

  1. Review or implement drug free workplace programs including addressing specific provisions about marijuana use, look at each state you operate in separately; are you willing to make reasonable accommodation for medical marijuana patients
  2. Communicate with employees and job applicants related to drug testing practices and consequences of use on or off the job and what happens when there is a violation of policy and positive test results
  3. Use caution about reasonable accommodation for medical marijuana particularly in Arizona, Connecticut, Delaware, Maine, Minnesota, Nevada, New York and Rhode Island
  4. The above listed states are problematic and there a concern for employers with blanket prohibitions on medical marijuana users
  5. Train supervisors and managers on how to deal with potential use on the job or “reasonable suspicion testing” on the job along with the ability to identify signs of using at work

Bottom line, employers must make decisions and implement policies specific to marijuana use and address on a state by state basis depending on where you do business.  For those companies in recreational marijuana states that may take a more liberal approach, it is also important to effectively communicate that even though it’s legal to recreationally use marijuana, being under influence at work is still violation of company policy. 

Learn more about marijuana and workplace drug testing, click here