Should Businesses Care About Employee Cannabis Use

Weed is legal — not everywhere, but almost. A revolutionary shift in public perception of the sticky green herb has compelled lawmakers in states across the country to permit adult purchase, possession and partaking of weed, or at least radically eliminate criminal charges for having and using the substance. Considering that cannabis is safe and even beneficial for some with serious health conditions, the change to cannabis regulations is generally a welcome one.

However, the rapid legalization of weed has left many employers scratching their heads. If an employee is legally allowed to consume cannabis, are employers legally allowed to discriminate in the hiring process or terminate employees for weed use?

It Depends on the State

As mentioned above, cannabis laws vary from state to state. Even as more states pass regulations that permit recreational adult use of the drug, each state’s regulations are unique. Until the Federal Government gets involved in updating cannabis laws, cannabis users need to review the laws of any state they visit to avoid breaking the rules and getting into trouble.

The same goes for employers. Some states go out of their way to provide workplace protections for cannabis users, while others have crafted statutes that give employers the option to prohibit all cannabis consumption, even off-duty. Employers interested in testing employees for cannabis use — or terminating employees suspected of consumption off-the-clock — should review the cannabis laws affecting their business and employees before taking any action that could put them in jeopardy.

More and more frequently, states are specifically limiting employers’ right to pre-screen job applicants for cannabis use or act on this information during the hiring process. These efforts are largely to protect medical marijuana users, who tend to rely on low doses of cannabis to maintain a productive lifestyle.  Generally, the only positions exempt from these rules are those that are safety-sensitive, or which hold an employee responsible for the safety of themselves or others, like pilots, operators of heavy machinery, healthcare providers and more.

Large employers that operate in multiple states or countries should consider the laws in every region before crafting their company-wide cannabis policy. Still, even small businesses can be baffled by the complexity of cannabis statutes. Regardless of a business’s size or industry, it is beneficial to consult with a legal team before crafting company cannabis policy.

A More Progressive Practice

The truth is that most employers do not need to concern themselves with employees’ extra-employment cannabis consumption because the vast majority of positions are not safety-sensitive. While prohibiting on-site cannabis consumption or arriving to work high can be against company policy and grounds for serious consequences — just as being drunk on the job would be — policing employees’ activity outside of work, especially when that activity is fully legal and largely harmless, won’t result in positive relationships between employees and employers.

In most cases, a much more advantageous attitude for employers is one of “don’t ask, don’t tell.” Employers usually don’t need to know if a worker is using their off-hours to enjoy legal weed. As long as employees keep their cannabis consumption to themselves, employers should assume that all staff are using psychoactive substances (or not) responsibly. Even if an employer has a reason to believe that a worker is visiting dispensaries in Maryland for medical marijuana treatment, it might be best to ignore that suspicion — until it becomes a potential issue in the workplace.

Regular cannabis testing isn’t necessary in most organizations, until an employer has reasonable suspicion that an employee is intoxicated while performing their duties. However, because tests aren’t always reliable indications that a worker is high, employers should look for other indications that a worker isn’t merely consuming off-duty. Reasonable suspicion can be bolstered by observations such as:

  • Strong cannabis odors
  • Strange physical behavior, like twitching or staggering
  • Confused or blank facial expressions
  • Watery, red, dilated or squinting eyes
  • Slurred speech

Unfortunately, many organizations might best take a wait-and-see position when it comes to cannabis policy for employees. Cannabis regulations are shifting quickly and dramatically as decades-worth of cannabis stigma slip away. Because cannabis isn’t dangerous to most positions, most employers can relax their cannabis policies while the dust clears and states develop more established statutes for weed in the workplace.

Adam Hansen

Adam is a part time journalist, entrepreneur, investor and father.