What’s the law on cannabis in the workplace?
As marijuana reforms continue to change various aspects of society, the workplace is at the top of the debate list. For better or worse, companies are reconsidering their cannabis-at-work policies in the face of a winding down of stringent cannabis regulations in their various jurisdictions.
In many localities, testing positive to a workplace drug test no longer triggers an automatic firing. Also, the incongruence between cannabis laws at various levels of government makes the legal landscape a minefield for all parties in any related litigation.
Although the law seems to side with employers most times, penalties are sometimes overturned in favor of an employee due to practical considerations. Sometimes, drug tests can detect drug use that occurred several days or up to a week before. Testing positive under such circumstances doesn’t necessarily prove impairment during time on the clock.
What are employees’ rights to cannabis at work (if any)?
To be clear, there’s currently no law at the federal, state, or local government level that compels employers to accept cannabis impairment or any other form of intoxication at work. Even in the most cannabis-friendly jurisdictions, employers are free to adopt zero-tolerance workplace policies.
But while employers may have free-reign to take action against adult cannabis use at work, most companies have to walk a tighter rope in dealing with medical use on duty.
In many pro-medical-use jurisdictions, the law explicitly protects medical marijuana users against discrimination in the workplace. In some places, employers are prohibited from administering pre-employment marijuana tests.
The best loophole that employees can explore to defend themselves after testing positive (whether for medical or recreational use) is that the duration of the intoxication isn’t established, and so they cannot be rightfully accused of being impaired on the job.
What is the best approach for employers when it comes to using cannabis at work?
THC has tendencies to influence spatio-temporal perception, timely reaction, motor skills, and sensitivity. A zero-tolerance workplace policy is therefore justifiable in almost any workplace, especially in those involving the use of machinery and vehicles.
But regardless of the level of danger posed by impairment at work, employers now need to take a more proactive approach towards cannabis at work policies (of course, with strict compliance with applicable laws).
Research shows that regular drug tests are an expedient deterrent against drug use in the workplace. But as per enrolment, employers need to be aware of the fact that the increasing rate of pot use may affect their chances of finding drug-free talents. With stringent pre-employment drug test policies, an employer might need to make tough decisions to turn down highly talented candidates due to their drug use status.
Management should also lay more emphasis on training senior officials to detect impairment on the job. A clear set of rules should be laid out for instances that should trigger the need for drug tests. The entire drug policy should be explicit about use, suspicion of use, the method of the drug test, and the penalties for testing positive.
Nonetheless, employers should also make provisions to support employees with cannabis problems. A positive result should not warrant an outright dismissal; instead, employers should seek ways to ensure that drug use does not derail an employee’s work life.
Final words – Cannabis at work lessons from countries with legal cannabis laws
As with just about any other aspect of cannabis regulation, governments in countries where cannabis use is legal are keen on preventing scandals resulting from cannabis at work. There’s currently no perfect law that’s fully justifiable concerning cannabis at work, whether it favors employers or employees. Governments are therefore coming to terms with the fact that their best bet is a trial-and-error approach to finding the perfect conditions.
As such, these governments are giving employers a lax regulatory environment to experiment with their policies and workplace culture. And so far, the following trends seem to be holding sway in most governments’ approaches to cannabis at work:
- Discouragement of zero-tolerance drug policies but the promotion of drug-free workplace culture.
- An explicit delineation of off-duty and off-premises drug use from on-duty and on-premises drug use.
- Sound legal advocacy for employers as per cannabis regulations across various levels of government.
The main purpose driving these trends is the desire by governments to help each company to adopt cannabis-at-work policies that ensure safety, productivity, and employee engagement in the workplace, regardless of the legal patchworks from various levels of government.