2023 and Past: Marijuana and the Office

Marijuana and the office – it’s difficult. Ought to or not it’s although?  With rapidly-changing state legal guidelines conflicting with federal legal guidelines, confusion rightfully looms.

In 2020, U.S. authorized marijuana gross sales elevated by 67 %, then one other 40 % in 2021, reaching $26.5 billion in gross sales. In 2022, it was estimated that authorized marijuana gross sales exceeded $32 billion in gross sales with most Individuals supporting the legalization of marijuana.

In response to a November 2022 Pew Analysis research, 9 in ten Individuals assist the legalization of marijuana for medical or leisure use. And states are taking discover, with 37 states legalizing medical marijuana utilization whereas 21 states have legalized it for leisure functions. Regardless of this assist, the Drug Enforcement Company (“DEA”) classifies marijuana (or hashish) as a Schedule I drug underneath the Managed Substances Act of 1970, together with heroin and LSD.

Whereas the federal and state governments regularly oppose one another’s marijuana utilization legal guidelines, employers face continuous challenges in crafting HR insurance policies and procedures, together with worker drug testing and recruiting. As extra states take into account legalizing leisure marijuana in 2023, reminiscent of Minnesota and Pennsylvania, the “patchwork of employment protections” will proceed to develop and evolve.

Maintain studying to be taught extra about what employers want to grasp about marijuana and the office – in 2023 and past.

Latest Federal Laws

To grasp the developments in marijuana and the office, HR professionals and employers should perceive latest federal and state laws.

Though federal laws has continuously appeared as a bulwark to authorized marijuana use – out and in of labor – a number of federal initiatives have gained traction lately.

For instance, in October 2022, President Joe Biden granted clemency to low-level federal marijuana offenders whereas directing the U.S. Lawyer Basic to assessment federal marijuana legal guidelines. Inside this Presidential motion, President Biden “inspired state governors to take comparable steps however, underneath the USA’ federalist system of presidency, the President has no direct energy to alter state legislation or compel the states to undertake federal insurance policies.”

Employers ought to perceive, nevertheless, that this Presidential pardon “doesn’t change the standing of marijuana underneath federal legislation.”

In 2021, Congress launched the Medical Marijuana and Cannabidiol Analysis Growth Act, which facilitates analysis on each marijuana and cannabidiol (“CBD”). This act (and authorized reform) encourages the discount of federal and state legislation variations.

Moreover, the U.S. Home of Representatives launched the Marijuana Alternative Reinvestment and Expungement Act (MORE Act, H.R. 3617) in 2021, which removes marijuana and Tetrahydrocannabinol (or “THC”) from the Managed Substances Act altogether and requires the expungement of any previous federal marijuana convictions. Though the Home accepted this invoice in 2022, it by no means obtained a listening to within the Senate.

Though these federal legislation modifications don’t immediately deal with marijuana and the office, they show modifications in perspective towards marijuana on the federal stage.

Latest State Laws

As of January 2023, 37 states have legalized medical marijuana, together with Alaska, Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Virginia, Washington, and West Virginia.

Moreover, 21 states have legalized marijuana for leisure functions, together with Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Vermont, Virginia, and Washington.

To complicate issues, the state courts at the moment are concerned too.  For instance, on December 1, 2022, the Nevada Supreme Courtroom was “tasked with decoding whether or not Nevada legislation offers workers who use medical hashish with office protections.”  On this ruling, the court docket concluded that as a result of its state legislation requires that employers present “cheap lodging” for these medical-use marijuana customers (when used off-site or outdoors of working hours), workers might sue their employers for failing to offer any lodging.

So, the place does this go away workers?

3 Issues Employers Ought to Know About Marijuana When Navigating the 2023 Office

1. How does elevated marijuana legalization impression drug testing insurance policies?

With quite a few states legalizing (and decriminalizing) marijuana utilization, many employers are scrapping their drug testing insurance policies whereas the legislation continues to evolve.  However is a full scraping vital?

Employers with safety-sensitive workers, reminiscent of airline pilots, workers dealing with heavy equipment, or federal contractors haven’t any alternative.  By legislation, they need to drug-test their staff for marijuana. Different employers have the selection to implement and administer drug testing insurance policies, as no complete federal drug testing legislation exists.

Nonetheless, right here’s the rub. Many states have enacted their very own drug testing restrictions, working the gamut from limiting testing to “cheap suspicion” to allowing random testing. This creates conflicts, as soon as once more, for employers trying to replace their HR insurance policies.

As a result of marijuana utilization legal guidelines proceed to evolve quickly, listed here are some finest practices for updating employer drug testing insurance policies:

  • Perceive what the legislation in your state (or states for multi-state employers) says about drug testing.  For instance, perceive when and how one can administer drug assessments  of any restrictions) together with what documentation is required.
  • Moreover, perceive what your native legal guidelines say about drug testing, reminiscent of your metropolis or county.
  • Within the coverage itself, clearly state the specifics of your drug testing program, together with which positions require testing, when and the way testing can be performed, what occurs if an worker fails a drug take a look at (i.e., what are the implications?  Suspension? Termination?), and any lodging which may be granted.
  • Make sure that your workers are conscious of your drug testing coverage.
  • Additionally, be sure that your HR crew understands the coverage and any latest modifications or revisions to the coverage.
  • Proceed to observe nationwide, state, and native authorized developments, serving to you to maintain your HR insurance policies present and compliant.

2. How does marijuana utilization impression firms which are hybrid, absolutely distant, or co-located?

Over the previous three years, employers have skilled the great and unhealthy (and every thing in between) about workers shifting to distant, hybrid, or co-located work experiences.  For instance, workers in states the place leisure marijuana use is authorized might really feel like they’ll smoke throughout work hours since they’re within the privateness of their very own houses.

However, an worker’s work location doesn’t change an employer’s tolerance of marijuana utilization whereas working.

Legally, employers can prohibit marijuana use throughout work hours.  Nonetheless, with work and residential blurring the strains for distant or hybrid workers, what can an employer do?

Listed below are some finest practices for employers with distant or hybrid staff to remember:

  • Revisit your HR insurance policies, figuring out whether or not they need to be up to date or any type of distant work.
  • Proceed to remind workers that firm insurance policies apply to them throughout working hours, regardless of the place they’re situated.  This consists of any drug and alcohol insurance policies.
  • Make sure that any employment agreements or distant work agreements replicate your stance on marijuana use, drug testing, and penalties for not complying with firm insurance policies.
  • Perceive your authorized choices in case you suspect an worker is utilizing marijuana on firm time.

3. How do marijuana and the office impression recruiting and hiring total?

The tight labor market continues as we roll into 2023, and recruiting professionals are nonetheless attempting to maintain that aggressive edge when attracting (and retaining) expertise. To fulfill these challenges, some employers are taking one other have a look at their marijuana drug insurance policies, together with obligatory or pre-employment drug testing, to find out in the event that they’re excluding potential expertise from making use of for jobs.

In June 2021, Amazon introduced they might not embody marijuana of their pre-employment drug screening.  In doing so, Amazon acknowledged:

We made these modifications for a couple of causes. First, we acknowledged that an growing variety of states are shifting to some stage of hashish legalization—making it tough to implement an equitable, constant, and nationwide pre-employment marijuana testing program. Second, publicly obtainable nationwide knowledge signifies that pre-employment marijuana testing disproportionately impacts individuals of coloration and acts as a barrier to employment. And third, Amazon’s tempo of development signifies that we’re at all times seeking to rent nice new crew members, and we’ve discovered that eliminating pre-employment testing for hashish permits us to broaden our applicant pool.

And, Amazon isn’t alone.  Listed below are some different massive employers which are kicking pre-employment drug testing to the curb:

  • Apple
  • Fb
  • Hole
  • Michael’s
  • PetSmart
  • Starbucks
  • Dealer Joe’s
  • Entire Meals

When you select to maneuver marijuana out of your pre-employment testing, that doesn’t imply you’re condoning marijuana use throughout work hours. As an alternative, consider it as increasing your expertise pool whereas growing your inclusivity.

As legalization and acceptance of marijuana utilization proceed to develop and evolve, HR professionals might want to keep within the know in the case of the authorized utilization of marijuana. Understanding the legislation (on the federal, state, and native ranges), deciding whether or not to exclude marijuana from any pre-employment drug assessments (or excluding pre-employment drug assessments altogether for unregulated positions) and refining your HR insurance policies ought to proceed to be matters of dialog at your group for 2023 and past.


Jenny Kiesewetter

Jenny Kiesewetter is a prolific Nashville-based freelance author, instructor, and coach, specializing in human sources points, worker advantages, worker coaching and improvement, and authorized compliance points. Jenny has a knack for making difficult matters comprehensible, digestible, and worthwhile. In her free time, Jenny enjoys spending time along with her family and friends, touring, dwell music, and eating out.

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