April 26, 2022

Marijuana, Mandates & Mankind

With the legalization of both medical and recreational marijuana on the rise, it’s incredibly important to keep up to date with changing mandates at the local, state, and even federal levels. As we pointed out in our Top Trends in 2022, there has been movement in leniency as it comes to drug screening. But as more time goes on, it’s becoming less about tolerance and more about the legalities behind marijuana – be it medical, recreational, or no usage at all.

The Society of Human Resource Management (SHRM) provided that 37 states have now approved medical marijuana use. 18 states, as well as Washington, D.C. have also approved recreational use of cannabis. So that begs the question: what does that mean for you and your company?

Know your current laws.

Of course, the number-one way to get on top of any problems that could arise is by keeping up to date with any and all laws concerning marijuana and the drug screening process. Let’s take New York City for example. As of October of last year, Section 201-d of the New York Labor Law was amended to include protections for recreational cannabis use. This Section is written to prohibit discrimination by an employer against their employees because of (some) outside-of-work activities that are lawful. While this includes a vast majority of workers in the state, it does not apply to independent contractors, volunteers, or workers who are in the federal sector.

However, if an individual was to show up to work, seemingly intoxicated, the employer would absolutely have the right to test. The big question is where to go if the test comes back positive, as testing for THC cannot show whether there is a current impairment. This is something that many, many employers are constantly left wondering about, which usually calls for a discussion with their legal team. You can view Adult Use Cannabis and The Workplace here. This, of course, can be where the “what if?” lies. While New York is a perfect example to showcase just how complicated drug testing for marijuana can be, it’s only one instance.

Consider all your options.

We know how difficult hiring is right now. Between returning back to the office after the height of the pandemic to labor shortages across the globe, we get it. Some companies are scrambling to stay open and hardly have time to review what options they have when it comes to drug screening. Consider this: despite all the changes to drug screening in the last handful of years, when’s the last time you looked at your policy?

While removing THC from a drug screening panel is not an option for every employer, it is a trend that is continuing across our nation. Not only may it increase the pool of candidates you have to choose from, but it may also actually speed along the drug screening process to help you hire faster.

Of course, most employers have the right to continue screening for marijuana in their drug tests, as it is presently federally illegal. There have even been efforts to provide breath-testing for marijuana users, which uses science to see if they have used cannabis in the last 180 minutes. This way, there’s a possibility that employers can differentiate someone who smoked before work and is now impaired, from someone who may have used legally outside of work hours. As more and more development is made to new and potentially more reliable testing, it’s likely we will see more changes in recruiting and HR.

Keep an eye out for changes.

This goes hand in hand with the two above points, but things are constantly transforming in our industry. What we knew to be true about state laws concerning marijuana have changed within the last week, even! As more local laws continue to transform, the big topic to keep an eye out for is federal law. With marijuana still classified as a Schedule I drug at the federal level, there are bills and amendments constantly spinning in Congress.

Though all the recent efforts to federally reform have not gone through, it’s important to consider where your company might have to go next. And with more and more states choosing to make cannabis either recreationally or medicinally legal, it’s good to get ahead of a decision. This way, you’ll know exactly what your team’s response will be if your state decides to legalize marijuana and swiftly put that plan into motion!

Ever since more states have been adopting medicinal marijuana, and then recreational, drug screening for THC has been a hot topic. We’ll continue to stay up-to-date with all of the changes and share any news that could pertain to you and your company. Who knows? Maybe you should keep your eye out for a webinar from Atlantic that further breaks down the impact of drug screening with or without marijuana o the panel. As always, if you ever have any questions about laws concerning marijuana use and drug screening in the workplace, we implore you to get in touch with your legal team.

Marijuana Laws and the 2022 Workplace by SHRM

Adult Use Cannabis and the Workplace by the NY State Department of Labor