Cannabis and Employment in the Age of Impending Legalization

Even in states with legalized cannabis, it’s use on the job can still result in termination. That’s one of the main findings of a new survey by the Society for Human Resource Management (SHRM). More importantly, despite the harshness of current employer policies, human resource professionals are being advised that change is on the way and that they will need to adapt.

SHRM surveyed human resource professionals in two groups of states—those where cannabis was legal for medical use only and those where cannabis was legal for medical and recreational use (Alaska, Colorado, Oregon, Washington and the District of Columbia). Most state laws allow employers to prohibit cannabis use on the job and employees from being under the influence while working.

Almost all responses to the survey (94 percent) report their company has a formal, written drug policy in place, and nearly the same percentage had their policy in place before legalization occurred. However, in areas where legalization has been approved, some companies have modified their policies, reported by 16 percent of professionals in medical states and 29 percent in medical/recreational states.

Nearly three-fourths of the respondents report a zero tolerance policy for marijuana use on the job. An exemption from this policy is more likely in states where only medical use is legal—reported by 22 percent of respondents.

The most frequent discipline for first time use on the job is usually termination, which is the policy reported by 50 percent of HR professionals in medical states and 41 percent in full legalization states. Other sanctions include referral to treatment programs (about 20 percent) and written warnings (about 17 percent).

Half of the HR professionals report pre-employment drug testing for all candidates, while some (about 10 percent) only for safety-sensitive positions. About one-third of the organizations do not conduct pre-employment drug testing.

On the other hand, 40 percent of the companies require drug testing in response to various potential incidents at the workplace, such as an accident. One-fourth of the represented companies drug-test employees throughout their employment—regardless of conduct.

The SHRM survey highlights five key observations about cannabis in the workplace.

1. Many companies will continue to base their policies on federal law, especially if they are federal contractors.

2. More states, though, will be legalizing cannabis in the near future, and companies will need to reconsider their policies—especially companies that operate in several states with different types of laws.

3. Legalization of cannabis for recreational use in California will change everything because of the state’s size and influence, and change in California “is likely to set a precedent that will influence the viability of federal legislation.”

4. The attitudes of the younger Millennial generation support cannabis legalization, and this will continue to have a large impact on both law and workplace policies.

5. SHRM is advising their members that “changes in the legality of marijuana use in many states could also influence the use of drug testing.”

The survey is based on 623 human resources professionals randomly selected from the organization’s membership in states where cannabis has been legalized in some form and was conducted in October of 2015.  For-profit, non-profit and government organizations were represented among the respondents. A variety of industries were represented, and about half of the responses came from manufacturing, professional and health/care social assistance industries. The transportation, construction and retail trade industries each provided 7 percent of the responses.

The most important aspect of this poll is that the Society of Human Resource Management is not only aware of the significance of the ongoing legalization of cannabis in the United States, but that they are warning their membership of the need to adapt to this trend and prepare to revise widely held employment policies about cannabis use.

The biggest obstacle to such changes, though, remains federal legislation mandating zero tolerance and drug testing policies for companies with federal contracts. The most interesting aspect, overall and with respect to this obstacle, is SHRM’s recognition of importance of impending cannabis legalization in California.

Workplace discrimination against cannabis users remains a vital priority for the reform movement.

It is especially important regarding the medical use of cannabis; people should not be forced to choose between their medical care and their employment.

There are some legitimate employer concerns about the use of cannabis and on the job impairment; that’s not really the issue here, and such concerns can be addressed by reasonable and practical policies based on research and experience.

The discrimination issue concerns blanket polices that are not based on research or the facts of individual cases but instead on a blind embrace of prohibitionist logic that any and all cannabis use renders someone unfit for employment.

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