Marijuana in the Workplace: Navigating Legal and Safety Challenges

Nearly half of the states in the US allow the sale and consumption of marijuana for recreational or medical purposes [1] . These legislative changes have left employers uncertain about how to manage their internal marijuana policies with the weed work laws that may apply to their employees.

Compounding this issue is the possibility for a company to have employees in multiple states, requiring drug use policies that comply with varying state laws and overarching safety standards set through federal law.

We address the key concerns for employers in testing for marijuana impairment, complying with applicable state and federal law, and balancing the rights of employees in a company’s drug use policies. Our employee handbook and policy forms can then provide a valuable starting point for employers who want to maintain a safe workplace while navigating the legality of marijuana use in some states.

Understanding Marijuana Impairment in the Workplace

Marijuana is a complex drug because of its unique ability to serve as a depressant, stimulant, or hallucinogenic when the THC enters a person’s bloodstream [2] . Factors like potency, method of consumption, or an individual’s mental health and personal tolerance can all affect a person’s response to consuming cannabis. This leads to a wide range of possible side effects and impairment levels, making it difficult to generalize its impact on a person’s productivity or overall workplace safety.

For example, marijuana could have depressant effects akin to alcohol that slow a person’s brain function with symptoms including confusion, poor concentration, and drowsiness. Alternatively, marijuana could also result in elevated heart rate, increased blood pressure, and restlessness, which is more common in stimulants such as amphetamines. These contrasting side effects can pose different risks to workplace safety and productivity depending on an employee’s duties or workplace environment.

Effects on Performance

The cognitive and motor skill impairments from marijuana use have been shown to have an overall negative effect on job performance and workplace safety. A study from the National Institute on Drug Abuse previously identified the following risks from employees impaired by marijuana [3] :

• 55% more likely to have an industrial accident
• 85% risk of injury
• 75% greater chances of absenteeism in the workplace

The Centers for Disease Control and Prevention noted that research further shows a strong correlation between marijuana use and the risk of a motor vehicle accident, which highlights the dangers of cannabis for employees in safety-sensitive roles. The risks from employee marijuana use can be costly, with the potential for increased workers’ compensation claims, additional liabilities, and other impacts on profitability.

Detection Methods

Several detection methods and tests are available to screen for an employee’s marijuana use or level of impairment. As a precursor, physical symptoms may indicate marijuana use, including bloodshot eyes, pupil dilation, slowed reaction times, and other observable changes in cognitive ability. Verifying marijuana use beyond the general symptoms requires more formal testing through analysis of samples from various body parts and byproducts, such as the following [4] :

• Saliva tests: Traces of cannabis are detectable through a person’s spit up to 48 hours after consumption and provide fast results within 20 to 30 minutes after collecting a sample through a swab of the mouth.
• Blood tests: THC is most noticeable in a person’s bloodstream within 24 hours of consumption but can remain over longer periods (up to 30 days) depending on how heavy or chronic an employee’s usage is.
• Urine tests: Perhaps the most popular method for detecting cannabis use because of its precision and limited invasiveness compared to a blood sample. A single use of marijuana can be found in urine up to 3 days later, while chronic use (multiple times per day) can remain in urine samples 30 days after the last use.
• Hair Tests: Sampling from a person’s hair follicle can also show marijuana use up to a 12-month timeframe depending on hair length (one month per centimeter of hair). However, hair testing can take several weeks to administer, making it less effective for detecting use in real-time.

Employers may consider using one or more of these testing methods depending on their needs. For example, immediate testing through a saliva sample may be valuable for substantiating current impairment and limiting the risk of accident or injury in the workplace from suspected drug use. A urine or hair test may be more beneficial in pre-screening candidates or as part of routine drug testing policies.

Limitations of Current Testing

Despite the many different testing options for cannabis use, employers will find that each has its own limitations and challenges that can make it difficult to detect actual impairment levels. An employee’s individual circumstances, such as their metabolism, gender, hydration level, and body fat percentage, may impact how effective their body is at removing signs of marijuana use from their system. Aside from the more immediate saliva tests, most marijuana detection methods have a delayed response that makes it difficult to test for current impairment or consider off-duty consumption.

For example, an employee could consume marijuana on a Friday night after work and fail a urine test taken the following Monday without having any actual impairment during working hours.

Legal Considerations for Employers

The legal landscape has never been more difficult for employers to navigate their employee’s potential rights to consume marijuana under employment and privacy laws while still ensuring a safe and productive workplace.

Employers may have to manage state-specific weed work laws and regulations regarding a person’s right to legally consume cannabis without adversely affecting their employment prospects and other obligations that conflict with these potential rights under federal law because of the occupation or industry.

Consider these issues, discussed more fully below, when using our company policy and employee handbook templates as a starting place for your business. Consulting with a licensed employment law attorney in your jurisdiction may also help address any specific concerns with marijuana use and testing policies for employees.

State-Specific Regulations

State laws may limit the actions an employer can take against their employees related to their marijuana use and consumption, especially in states that have legalized recreational or medicinal use.

For example, New York has a robust anti-discrimination law for an employee’s use of cannabis outside of work through Labor Law Section 201-D, which the Marijuana Regulation and Taxation Act recently amended. Employers in New York cannot prohibit employees from using cannabis outside the workplace or make them agree to not use cannabis as a condition of employment unless other state or federal law permits it [5] .

The law further restricts the situations in which an employer can drug test their employees. However, Section 201-D does not limit an employer’s ability to prohibit cannabis use during work hours or to take other action against an employee who manifests an articulable symptom of cannabis impairment.

In comparison, Alaska does not impose any restrictions on an employer’s ability to screen prospective and current employees for marijuana use and to make employment decisions based on the results [6] . The state has opted to give employers more freedom in their management of employees and their cannabis usage despite having legalized its recreational and medicinal use.

The legalization of marijuana is still a relatively new concept in states throughout the US. As a result, employment laws and practices are still adjusting to the balance of protecting a person’s right to use cannabis with their employment rights.

Furthermore, multi-state employers may have to comply with varying employment laws, requiring more effort in their policies and practices to ensure consistency across different states. Employers may also want to know how the rules in a particular state could change quickly based on legislative actions, agency decisions, court rulings, and other events.

California recently illustrated this point when it enacted Government Code 12954, which prohibits law enforcement agencies from discriminating against an employee because of their off-duty cannabis consumption. Shortly after, SB 1264 passed the Senate in an attempt to add peace officers to the list of occupations where it was permissible to prohibit off-duty consumption [7] .

Federal Compliance

On top of state laws and regulations, employers in federally regulated industries must also consider how their obligations may conflict with the legalization of marijuana use by their employees in certain states. Marijuana is still illegal on a federal level under the Controlled Substances Act, further prohibiting marijuana use for some occupations.

This federal oversight is most common in safety-sensitive industries where cannabis impairment by an employee could result in a greater risk of harm to others because the employee handles dangerous equipment, machinery, or other products.

Interstate transportation governed by agencies such as the Federal Aviation Administration or the Federal Motor Carrier Safety Administration may be a common example of these industries.

Employee Rights

An employee’s right to use marijuana in a particular state may also depend on any right to privacy laws that prohibit employers from discriminating against employees for their lawful use of products off-duty.

States that have reclassified cannabis as a lawful product may have either intentionally or unintentionally established additional employee protections through these privacy workplace laws.

Balancing Safety and Employee Rights

With these state and federal week work laws in mind, employers can begin to balance their safety interests with employee rights in their policies and procedures. However, these policies will likely need to address the following issues in marijuana use and testing.

Zero-Tolerance vs. Flexible Policies

Employers that have some discretion in their ability to impose restrictions on marijuana use and testing among their employees will have an important choice to make: whether to have a zero-tolerance or flexible policy about employment decisions after an employee’s THC drug test comes back positive.

A zero-tolerance policy sets a clear standard that sends a strong message about the company’s position on marijuana use. This policy may be preferable for a company depending on the culture and image it wishes for its employees to uphold, but it could have a downside in limiting the pool of otherwise qualified employees available for hire. In comparison, a flexible policy may allow employment decisions about marijuana use to be made on a case-by-case basis, considering other factors about an employee.

Reasonable Suspicion Testing

THC drug testing based on reasonable suspicion may be difficult depending on whether a company is subject to the scrutiny of state laws that determine when it’s allowed.

For example, New York’s Labor Law Section 201-D requires employers to have an articulable symptom of impairment but excludes certain evidence from its reasonable suspicion standard, such as merely smelling of cannabis [5] . Refer to any applicable state law when deciding the parameters for determining whether a drug test is necessary for an employee.

Off-Duty Use Considerations

Enforcing policies prohibiting off-duty cannabis consumption can be difficult for employers because of the costs of frequent drug testing and the other administrative complexities that accompany it.

Impairment from off-duty marijuana consumption generally fades after a short period of time but can remain in the body long afterward, which can make some drug testing impracticable. Employers will have to decide whether it makes sense for their company and industry to continue monitoring the off-duty consumption of cannabis as it becomes more mainstream as a legal product.

Conclusion

Given the changing legal landscape, employers need to take a flexible approach to their marijuana use policies for employees, including increased protection for employees in certain jurisdictions. A periodic review of legislative or regulatory updates along with new scientific data will be essential for establishing a protocol that meets employers’ interests in ensuring a productive and safe workplace. Our library of templates and resources related to employee handbooks and policies provides a useful starting point for employers to mold a cannabis use policy that meets their needs in jurisdictions throughout the U.S.

Frequently Asked Questions