What employers should know about marijuana safety and impairment policies

Laws on marijuana are changing rapidly in the United States, and as an employer you may be wondering what this means for you. It’s important to know your options for creating and enforcing safety protocols and policies, taking into account legal marijuana use.

Although many states are starting to legalize medical marijuana, recreational marijuana, or both, the federal government still classifies marijuana as a Schedule I or illegal drug.

Navigating federal and state differences

An employer’s legal safety and impairment policy options may depend on the level of operations or relationship the company has with the state or federal government.

"Employers can prohibit use, possession, and impairment from marijuana products during work hours, on work premises, or while operating the company's vehicle, machinery, or equipment," said LSH Senior Defense Counsel Aaron Schmidt. "Employers can also take action if failing to do so would violate federal or state law or regulations or cause the loss of federal money or licensing-related benefits."

Schmidt said that if federal laws are not intersecting with work operations in any way, the state law will govern the employer’s actions and policies. Employers must understand and comply with the statutory regulations relating to marijuana use within the states in which they operate.

Most states do not require employers to tolerate off-duty recreational marijuana use. However, some states are moving toward permitting legal off-duty marijuana use in some circumstances.

The variation and inconsistency in laws regarding medical and recreational marijuana use in the workplace make it particularly difficult for employers operating in multiple states to establish company-wide policies and practices. Therefore, it's best for employers to consult an employment law or business attorney in their jurisdiction.

Tips to create and enforce safety programs and policies

The changing legal status of marijuana in the U.S. provides a great opportunity to refresh your safety program and workplace policies.

These four actions are a good starting point:

  • Understand the law
    If a state you operate within has legalized marijuana, whether medical and/or recreational, you must take the time to understand how federal and state laws affect your operation.
  • Revisit job descriptions
    Regularly revisit your job descriptions to see if they are reflecting the current equipment you have, any technologies you’re using and the scope of the jobs that may intersect with a position. Make changes, if needed, to reflect the reality of the workplace so you can hire the best candidates for the job, and then provide the training they need to perform the job safely.
  • Be fair and consistent with all employees
    If you declare your workplace drug-free, you need to apply that standard across the board, taking into consideration legal limitations on any blanket policy.
  • Document violations
    As impairment and legality come into question, the most important thing to come back to is the safety of the workplace. If someone is practicing unsafe behavior, regardless of any drug use, you should act on it. No matter the cause of or legality of the substance causing the impairment, you can address safety concerns, and it’s important that you do. You may need to address that behavior separately from the substance that may be contributing to it.

The growing acceptance of marijuana use in the U.S. has forced lawmakers and employers to address its use and adapt. Seek legal counsel when implementing workplace policies that may impact marijuana users due to the quickly changing legal landscape.

You can find a state-by-state summary with references to governing statutes at nolo.com

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

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