This article was originally featured on Northern California Human Resource Association's (NCHRA) blog on November 2, 2016.
These days it’s difficult to avoid the election mania covered by the various media outlets. Given the major spotlight on the presidential race, you may not know that the potential decriminalization of marijuana will be on the ballot in several states.
California, Arizona, Maine, Massachusetts and Nevada will all weigh in on legalized marijuana for recreational use (also known as “adult use” and “non-medical use”) where it is currently approved for medical use only. Another 3 states (Arkansas, Florida, and North Dakota) will decide on the future of cannabis for medical use in their states.
Supporters of the ballot measures see this as a boon to the states’ economies via increased taxes and job growth for cannabusiness people. We have seen 25 states and the District of Columbia legalize marijuana in some fashion, making a continued trend of legalization highly likely.
So what does this mean for business owners and employers? Marijuana remains illegal under federal law and the state-by-state variations make this particularly confusing. For example, within the subset of those states approved for recreational use, the amount an individual can personally carry varies. As an employer, particularly a multi-state employer, these variations can be an administrative and enforcement nightmare.
Or do they? After all, alcohol is a mind and behavior altering substance that’s been legal for over 80 years and we seem to manage that in the workplace, right? Wouldn’t this be treated similarly? Well, it depends. Many laws clearly state that employers don't have to accommodate medical marijuana use during work hours or on company property while other states require reasonable accommodations for workers with disabilities (specifically as it relates to drug testing and adverse action).
The key is to know what is required by the states in which you operate, create an employment policy that complies with state law and enforce it consistently amongst employees of similar work groups.
The Bottom Line: Work with an HR consultant or an employment law attorney to navigate these unchartered waters. They should be watching how these new laws are interpreted by the courts and have your back should your policy need updating.