Employer Guidance While Navigating State-Specific Cannabis Laws

Last Updated on November 28, 2023

The rapid shift in cannabis laws across states has prompted significant changes in the workplace, as employers struggle to adapt to this evolving landscape. From an employment perspective, Cannabis laws create substantial challenges in developing drug policies and hiring employees. This is especially true with the increase in remote workers and companies operating in multiple states after the COVID pandemic. Here’s how employers can navigate the complex network of state-specific Cannabis laws when constructing these critical policies.

Understanding State and Federal Cannabis Laws

In the United States, Cannabis regulations vary widely by state, with some states allowing recreational use, others permitting only medical use, and some strictly prohibiting its use. Despite the liberalization of state Cannabis laws, employers must remember that, at the federal level, Cannabis is still considered a Schedule I substance under the Controlled Substances Act, making it illegal.

However, some states have enacted laws protecting employees’ rights to use Cannabis for medical purposes, preventing employers from discriminating against such employees. Therefore, it is crucial for employers to work with knowledgeable experts to familiarize themselves with the state and local laws applicable to their workforce, and their relationship with federal law.

Revising Drug Policies

Regardless of the state of operation, employers should maintain a safe, drug-free workplace. However, with the change in Cannabis laws, what constitutes a “drug-free workplace” may need reconsideration.

While employers generally have the right to prohibit the use, possession, or distribution of Cannabis at the workplace, off-duty use can be more ambiguous, particularly in states that have legalized recreational or medical use of Cannabis.

Incorporating these changes, employers should revise their drug policies to clearly outline their position on Cannabis use. Policies should clearly state whether off-duty consumption is allowed and whether an employee could face disciplinary action. Employers may want to consult with a knowledgeable Human Resource expert, such as MyHRConcierge, to ensure their policies do not inadvertently discriminate against or unfairly punish employees following state laws.

Approach to Drug Testing

Drug testing policies, particularly pre-employment screenings, need to adapt to the evolving legal landscape. Traditional drug tests detect the presence of THC, the psychoactive component of Cannabis, which can stay in the system for days or weeks after use. However, these tests do not measure impairment, making it challenging to ascertain an employee’s fitness for duty. Tests also may not differentiate between cannabis variants that are legal and illegal.

In states where Cannabis use is legal, some employers are choosing to remove Cannabis from pre-employment drug screening. Employers should review their drug testing policies and procedures and then work with a reputable drug testing company to develop a drug testing program that meets the company’s goals and complies with state laws while ensuring safety and productivity in the workplace.

Hiring Decisions

In the hiring process, employers must be cautious to not discriminate against candidates based on their legal Cannabis use. Some states have anti-discrimination provisions that prohibit employers from refusing to hire a candidate because they test positive for Cannabis use. In such cases, employers might consider focusing on job-specific qualifications, experience, and skills during the hiring process, rather than zeroing in on a candidate’s Cannabis use.

Training and Education

Finally, employers should focus on training and education, ensuring managers and employees understand the changes to the drug policies. They should also understand their rights and responsibilities concerning Cannabis use. This training can help prevent misunderstandings, disputes, and potential legal issues down the line.

While the landscape of Cannabis laws presents challenges for employers, proactive steps can help to navigate these complexities. Employers must stay informed about changes in state and federal laws, review and adjust their drug policies and testing procedures, and educate their workforce. By doing so, they can strike a balance between complying with the law, ensuring a safe and productive workplace, and respecting employees’ rights.

Let MyHRConcierge and MyHRScreens Help You Navigate State Specific Cannabis Laws

The team of MyHRConcierge and MyHRScreens can provide you with the expert resources you need to stay compliant with cannabis laws and build a drug testing program that meets your needs. Learn more about how we can help you navigate the complex cannabis laws by contacting us today at 855-538-6947 ext 108 or ccooley@myhrconcierge.com. You can also schedule a consultation with us below: