As recreational marijuana nears the halfway mark of legality (it’s been approved in 23 states so far), employers must continue to balance conflicting needs. They must not violate their employees’ rights (or the rights of job candidates), but they are obligated to ensure a safe workplace. Compliance and privacy officer Shawn O’Neil shares his insights.
The recreational adult use of cannabis in America is legal in 23 states, with nearly all 50 states having some level of recreational or medical legalization. Minnesota is the most recent to legalize recreational marijuana, joining others that have recently eliminated the prohibition of the drug such as Delaware, Missouri and Maryland.
With the growing acceptance of medicinal and recreational marijuana use and shifting societal attitudes toward the once-taboo drug, employers in nearly every state grapple with balancing employee rights, workplace safety and compliance with evolving laws. Companies must update their policies to ensure they respect employees’ rights, maintain a safe and productive work environment and comply with the laws.
Legal implications
While marijuana use may be legal in certain states, it is still considered an illegal Schedule I drug by the federal government, and each state has its restrictions and flexibilities as part of the law. Employers must stay informed about the evolving legislation surrounding marijuana because rules and regulations on marijuana use can vary significantly between states and even city by city. It’s essential to clearly understand state and local laws, whether medicinal or recreational use is permitted, whether employers may test for or take action on a positive marijuana test and how much marijuana use impacts the workplace.
The new law in Minnesota protects off-duty cannabis use by removing cannabis products, tetrahydrocannabinol (THC) and marijuana from the state’s definition of a “drug.” The recently passed legislation modifies Minnesota’s Consumable Products Act, which safeguards employees’ rights by forbidding employers from taking disciplinary actions, terminating their employment or denying job opportunities based on their lawful use of consumable products outside of work. As a result, current drug screening policies may be outdated and potentially non-compliant and employers cannot discriminate against job applicants or employees based on legal cannabis use during off-hours.
However, there are exceptions to this rule, allowing employers to conduct cannabis testing if required by federal or state law, if the employee’s role is safety sensitive as defined by the new law or if the position falls under specific categories where testing is permitted.
The Minnesota law emphasizes that employers are not obligated to support or allow the use, possession, sale, transportation or cultivation of cannabis in the workplace. And employers can still enforce drug-free workplace policies and conduct drug testing if they align with the new law and Minnesota’s workplace testing law.
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Read moreDetailsWorkplace safety implications
The effects from cannabis vary person-to-person, but the drug is known in many people to impair cognitive function, motor skills and reaction times, posing significant safety risks in various work environments. Industries that rely on precision, heavy machinery or safety-critical tasks, such as construction, transportation and manufacturing, may be particularly affected. However, unlike alcohol, there are no standardized impairment tests for marijuana, making it challenging for employers to gauge current impairment levels through drug testing.
Research has shown a major increase in marijuana detection for post-accident drug testing, emphasizing the growing concern about employee cannabis consumption. In 2022, the positivity rate for marijuana in post-accident urine tests among the general workforce was 7.3%. This marked a slight increase from 6.7% in 2021. Considering these statistics and new regulations, companies must redefine drug testing policies to address safety concerns while adhering to anti-discrimination provisions in their respective states.
Employer drug testing: Adapting to new realities
Administering drug tests in the workplace is a challenging issue as some laws protect workers from being penalized for off-duty cannabis use, so it is crucial to thoroughly review and update drug testing policies with state or national laws regarding marijuana use. In jurisdictions where marijuana is legal, some companies have decided to drop marijuana testing altogether partly because conducting drug testing without suspicion of impairment may not hold up legally and because the legal and financial implications with complex cases pose too much risk. For example, new laws in California and Washington are expected to go into effect in 2024 that prohibit companies from making certain employment decisions based on an employer-required drug screening test that has found the person to have non-psychoactive cannabis markers in their hair, blood, urine or other bodily fluids.
The U.S. Department of Transportation has recently published a final rule regulation that permits regulated employers to conduct pre-employment, random, reasonable suspicion, post-accident or return-to-duty drug tests using saliva testing. However, implementation of the rule is suspended until the government certifies a minimum of two laboratories capable of processing these tests.
That said, the focus should be on implementing screening measures that specifically identify impairment while on the job, ensuring adequate attention to safety concerns. One practical approach incorporates impairment testing methods that assess an employee’s ability to perform their job tasks safely. This can include cognitive assessments, reaction time tests and on-the-job performance evaluations.
Importantly, it is advisable to seek counsel from legal experts before taking any adverse action against an employee who tests positive for cannabis, particularly if they possess a medical marijuana card. This step will help navigate potential legal complexities and ensure compliance with applicable laws.
Maintain consistent and open communication with employees
To promote workplace safety, employers must educate their employees about the effects of marijuana on performance and safety. Training programs should emphasize responsible use and provide information on recognizing impairment symptoms. Employees need to understand that even in states where marijuana is legal, not being impaired and being alert are essential in the workplace. Employers should identify safety-sensitive roles within their organization where impairment could lead to severe consequences. These roles may include drivers, machine operators, healthcare professionals and employees handling sensitive information or critical infrastructure.
Employers should explicitly communicate the company’s stance on cannabis use during work hours, on company premises and in safety-sensitive positions. Managers and supervisors should be trained to recognize and document signs of impairment caused by cannabis or other substances and follow established policies and procedures. Companies should and in some cases must communicate their expectations and rules regarding cannabis use to both employees and applicants, providing them with updated drug-testing policies.
It’s also vital to encourage regular and open communication between employees and management about marijuana use concerns and workplace safety. Implementing a non-punitive reporting system can encourage employees to come forward if they suspect impairment, fostering a culture of safety and responsibility.
Creating sensible employee accommodations
For employees using medical marijuana, employers must comply with applicable disability and discrimination laws. Engaging in a two-way process is crucial to determine if reasonable accommodations can be made without compromising workplace safety. Employers should continuously assess their regulatory requirements, considering potential conflicts at the state and federal levels and keep their policies up to date as regulations change.
In this evolving landscape of marijuana legalization, employers must remain proactive, adaptable and well-informed. By navigating the complexities of the changing legal landscape and prioritizing workplace safety, employers can create a compliant work environment that respects employees’ rights while prioritizing the well-being of all.
Shawn O'Neil, compliance and privacy officer at Vault Health, is an accomplished executive leader specializing in compliance and privacy. A Loyola University law graduate with 25 years of experience in health insurance, transportation and employment screening industries, he expertly navigates regulatory landscapes including FCRA, HIPAA, OSHA, ADA, DOT, GDPR and more. 
