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Communicating a Substance Use Work Policy in Cannabis Legal States

Coming to a state near you: Cannabis legalization. The cultivation, possession, and recreational use of cannabis in person’s age 21 and above has already become legal in 10 U.S. states and Washington D.C. so far, with 33 additional states and the U.S. territories of Guam and Puerto Rico also allowing cannabis and CBD oil products for medicinal purposes. More states are expected to join suit, including Connecticut, New York, New Jersey, Illinois and Rhode Island by 2020 due to a strong push by citizens, and increasing medical evidence that cannabis has healing properties.

However, as of this article, the recreational use of cannabis is still illegal on a federal level, and remains a Schedule 1 controlled substance. This means employers are still free to enforce anti-drug policies in the workplace.

Communicating a drug use policy to employees.

If you are an HR professional in any of the states that have legalized cannabis, you are probably wondering how your organization can protect itself from injuries and damage by enforcing an anti-drug policy? Further, what steps should be taken if your state officially legalizes cannabis sometime down the road?

Here are some quick guidelines you can implement in your workplace.

#1 – Create a written drug-use policy that defines the company’s rules clearly in regards to cannabis use.

This should cover new hire drug testing and if your company plans to use random drug checks after employment. Include a disclosure about what an acceptable level of cannabis is and if a retest will be conducted. If there are consequences of using cannabis for illegal purposes, clearly outline the disciplinary process (including the levels of discipline up to and including termination).

#2 – Align the workplace policy with the actual work tasks.

In many work environments, the use of medication has similar effects on the brain as cannabis; it creates a gentle relaxation. If the tasks do not involve driving a vehicle, operating machinery, working face-to-face with clients, or processing large amounts of sensitive data, it could be ok to allow employees light use during the day. Give the employee a one-time pass on this. If it affects his work, the privilege ends.       

#3- Be aware of cannabis products.                                                                                                                                                                                                         

As an HR pro, it’s up to you to become educated about the various cannabis-based products that are on the market now. Learn the difference between hemp that is used to produce non-THC consumer products, and hemp that is grown specifically for the effects of THC. Be able to talk with employees with some degree of knowledge about the cannabis industry. Learn what the signs of chronic drug use are, and if it comes from cannabis or opiates.

#4 – Understand what medical marijuana means.

This is often a challenging area for HR to navigate. In many regions, people have access to medical marijuana, due to certain approved health issues (pain, cancer, mental illness, etc.). This can include the right to use off-duty, as well as on-duty as needed. If an employee is approved, he or she will be able to present a current medical marijuana card from a qualified physician. This often intersects with accomodation for disabling conditions and anti-discrimination laws, so treat this as so when dealing with an employee like this.

#5 – Communicate the policy to all employees.

It is absolutely critical that all employees know about and understand where your company stands on substance abuse in the workplace. Consult with the owners of the company to determine how and under what circumstances cannabis is allowed for use by employees. If you are in a state that has legalized its use, it’s very possible the leadership at your company may support this and want to leave it off of drug testing. If the use of cannabis products is undesirable, then communicate this but also have a clause about how medical marijuana cases will be managed.

Remember, it’s better to be transparent when talking with employees about cannabis use. The laws are expected to keep changing over this, and therefore you must be adaptable as an HR leader.

Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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