It wasn’t that long ago that the question of legalizing recreational marijuana was met with disbelief and in many cases laughter. Now that NH is surrounded by states, as well as Canada, that have legalized the recreational use of pot, its no laughing matter. In fact, more than 33 states have legalized marijuana use and employers across the country are now taking a sober look at their policies.
With record-low unemployment, many employers who draw labor from neighboring states where pot is legal have made changes to HR policies (at least for jobs that are not safety-sensitive), fearing they might disqualify otherwise qualified individuals who partake in marijuana on their own time. Some businesses no longer ask about drug use at the initial interview or application stage. Others have revised their policies on testing or dropped marijuana from pre-employment drug screens.
As marijuana is still classified as an illicit substance under federal drug laws, it has become the new “Don’t Ask, Don’t Tell” policy in the workplace. Employers, desperate to fill jobs, are turning a blind eye to an applicant’s possible use of marijuana in off-work hours as long as the person can perform the job.
Many employers simply don’t want to know because once they are aware, they may be compelled to monitor the employee’s work, fearing liability for work-related claims; test an employee when drug use is suspected; or terminate an employee even though there is no legal standard to measure impairment for marijuana use as there is for alcohol.
Testing could also result in discrimination claims (if only certain individuals or groups are tested) or invasion of privacy.
For safety-sensitive positions (such as truck drivers, bus drivers, forklift operators, pilots and medical professionals), inquiries and drug testing, including for marijuana, are not only encouraged but often required. Many employers are now making distinctions between those positions and others in their policies and testing practices.
While medical marijuana use has been legal in NH for a few years, that hasn’t prompted many employers to change their workplace policies and practices. If an employee has a prescription for medical marijuana, most employers treat it like any other prescription (the employee can’t be impaired at work) with one exception—they still prohibit the possession and use of marijuana while at work. Employers rely on their smoking policies and federal drug law for that prohibition. Until recently, courts sided with employers in that regard, finding that while marijuana use may have been legalized, state law didn’t require employers to permit its use or allow employees to be impaired at work. That may now be changing, at least with regard to possession and use, as court decisions in other states have now sided with employees, as long as they aren’t impaired at work.
The Political Battle
Now the issue of legalized recreational marijuana is before the NH Legislature. Supporters cite individual liberties, criminal justice reform, tax benefits, and the fact that other states have legalized marijuana without serious problems as reasons that NH should permit and regulate recreational marijuana use. Opponents warn of the public safety risks (citing an increase in impaired drivers in other states), health risks to teens, increased costs of regulation and an exacerbation of the state’s opioid crisis.
The bill, HB 481, if passed, would allow anyone over 21 years old to use marijuana. That means authorized users could possess, consume, grow, purchase, process or transport marijuana, within certain parameters, without legal retribution. The governor is opposed to this legalization effort but there may be enough support in the legislature to override a veto if the bill is passed. As this is an issue that employers are already dealing with, many are now taking a clear-eyed look at their drug and alcohol policies.
Employers who are revisiting these polices should consider a few things:
• Where they do business.
• State laws where they do business.
• Whether they should have one universal policy or one with state-specific addendums.
• If they are a federal contractor or subcontractor and the requirements that go along with those contracts.
• If they have safety-sensitive positions and whether they should have different policies for positions that are not safety-sensitive.
• Whether they need or want to ask about and test employees for marijuana use at the pre-employment stage.
• Whether they will test during employment and the consequences for a positive drug test.
• Their workplace culture and the effects of testing on that culture.
• The legal consequences of not testing.
The reality is that legalized marijuana is here to stay and employers need to decide how they want to handle this fuzzy issue. Ignoring it or relying on outdated policies is not the answer. Taking a fresh look at policies may be required to stay on the right side of the law and to embrace the new realities of the workplace.
Attorney Jim Reidy is a partner at the Manchester-based law firm, Sheehan Phinney. He is a management-side employment lawyer and chair of the firm’s labor and employment practice. For more information, visit sheehan.com.