The Perplexing Pot Puzzle
A developing issue for employers this year is drug policy. More pointedly, the issue is whether current policies achieve the overall company goals without impeding personal rights. Employers and employees are grappling with a mixed bag of policies, directives, and motives that necessitate a decisive position to bring clarity and purpose to the confusing haze.
Drug policy is at a jurisdictional crossroads. Currently, 30 states and the District of Columbia permit the use of marijuana in some form. Eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington,) and the District of Columbia also permit personal use as well. More states continue to launch efforts to decriminalize or legalize marijuana for personal or medical use. This has created a budding industry of growers and dispensaries that add money to the much-needed state coffers for schools, affordable housing, law enforcement, and public education campaigns.
Earlier this year, the Justice Department revoked the 2013 Cole memo, which granted prosecutorial discretion to federal prosecutors to leave those acting in compliance with state marijuana laws alone. In response to the announcement, members of Congress are pushing to include an amendment in the appropriations bill to prevent the Justice Department from using money obtained through the bill towards efforts that bypass state marijuana laws (previously known as the Rohrabacher-Blumenauer amendment). Some members of Congress are looking to further expand protections for both medical and recreational users of marijuana through the Respect State Marijuana Laws Act and the Regulate Marijuana Like Alcohol Act, which would remove the federal ban against marijuana use.
All this change leaves companies holding the bag and in the position where they must fill the leadership void and clearly define their respective company drug policy. Whether they continue zero tolerance policies or take a more nuanced approach, three things stand out for employers to consider:
- What is the ultimate goal of the drug policy (and testing)?
- Does the policy risk infringing upon personal rights?
- How does/will the policy influence the current workforce and potential for growth?
Companies have an interest and duty in maintaining a safe work environment for all employees and enact policies that promote safe behaviors. Drug-free workplace policies fall under this category of policies. Drug testing is a means to ensure compliance with the policy. The rise of medical marijuana laws across states signals it is high time employers reconsider, revise, and reevaluate policy language and blanket testing.
To formulate the best approach, companies need to answer: what is the ultimate goal of our drug policy and drug testing? They must first identify the true motives behind the policy, which serve as the "north star," and helps ensure the "why" aligns with the measures taken.
Companies should ask themselves, are we trying to punish past behavior, spot future issues, or keep a certain code of conduct in and out of the workplace? Defining the motivations behind the drug policy and drug testing puts the company on stronger footing when later articulating or defending their position. Moreover, it sets the stage for ongoing conversations about medical care (if applicable). This is especially important because it can allow the employer to explore and reach alternative (and perhaps creative) solutions to problems brewing in the workplace. One example could be allowing the use of medical marijuana in workers compensation claims. Four states (New Jersey, Maine, Minnesota, and New Mexico) have ordered employers to pay the costs of medical marijuana for injured employees, citing the benefit of substituting medical marijuana for the opiate prescription as a factor in the decision. With the rise of opioid addiction and the desire to find less addictive (and costly) forms to treat injuries, it behooves employers to consider alternatives to prescribed and potentially addictive narcotics, such as oxycodone, in favor of equally effective and less addictive options, such as medical marijuana. Again, demonstrating the importance of isolating the goal of company drug policy.
Testing can uncover a Pandora's Box of information about employees, providing a window into conditions and habits, carrying with it the potential to be seen as policing employees and violating their privacy. In the thirteen years since the Supreme Court decided Gonzales v. Raich, there has been a drastic shift in marijuana policy at the state level. Moreover, the 2005 decision did not address how and if privacy protections will extend to the lawful use of marijuana. Presently, recreational marijuana users are not afforded protections in the workplace. The current state level case law favors employers. They have the latitude to limit personal freedoms in the workplace, so long as they do not infringe upon constitutional protections.
On the issue of medical marijuana, state supreme courts in California and Oregon ruled the employer can refuse to hire an employee with a valid medical prescription who tests positive for marijuana. The courts held that state law protection applied solely to criminal prosecution and not the workplace. Conversely, in the Connecticut federal court decision Katelin Noffsinger v. SSC Niantic Operating Co. LLC, the court concluded federal law did not preempt the application of a Connecticut law that specifically protects employees who use medicinal marijuana. The law at issue contained a specific provision prohibiting employers from firing or refusing to hire someone who uses marijuana for medical purposes. Currently, eight other states (Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota, and Rhode Island) have similar language specifically protecting against employment discrimination for medical marijuana users. On February 1, 2018, Maine became the first state to protect workers who use recreational marijuana outside of the workplace and the Maine Department of Labor has removed marijuana from the list of drugs that employers can test for during applicant drug-testing. As the laws regarding marijuana use change through decriminalization and legalization efforts at the state level, a blanket policy that restricts an employee's behavior outside of the workplace could face future scrutiny and subject the employer to litigation.
As companies look to expand into new markets and fight to attract and retain talent, they may wish to evaluate if and how their drug policies might hamper their ability to find the talent needed. Noffsinger provides an illustrative lesson regarding talent. The employer recruited the plaintiff, and when she tested positive, they rescinded the job offer since their policy did not allow exceptions for medical marijuana use. Their inflexibility cost them talent. In states where marijuana is legal, companies may need to square job requirements with drug policies to help them compete for the best talent. This means evaluating the qualifications required for positions. Those in HR should sit with their business partners to better understand the qualification standards as well as job performance and behavior requirements necessary to perform the job and how this fits with the current drug policy. That puts employers in a better position to confront a situation where an ideal candidate fulfills the requirements listed for a position but may require an exception to the drug policy. This is especially true for companies seeking talent in geographic locations, positions, or disciplines where the competition is particularly strong. While employers can clearly state that intoxication is not acceptable at work, it may be time to rethink once standard policies in favor of a more flexible approach that addresses the current legal state, personal freedoms, company objectives, and changes yet to come.
Employers must foster and enforce a safe environment for all employees. Nevertheless, they do not want to "police" their employees' private lives. Understanding the company goal will help employers better articulate a drug policy that provides the guiding principle from which to make subsequent decisions. It will also provide the lens through which to review their actions. The changing marijuana legal landscape requires employers to weigh several considerations carefully: safety, health, legal, growth, and talent, among others, to develop the most flexible approach that meets their current needs and adapts to future changes.