The marijuana industry is quickly becoming big business. In 2019, analysts estimated that marijuana retail sales in the U.S. surpassed $13 billion. This explosive growth has resulted in a tremendous increase in the number of jobs within the marijuana industry. Studies project there will be at least 330,000 jobs in the cannabis industry by 2022 — more than the 268,000 people currently employed at U.S. steel and iron mills.
It is no secret that employment opportunities in the cannabis industry have traditionally appealed to and attracted cannabis users. In order to successfully grow from smaller, more relaxed businesses to large, multistate operators, it will become increasingly important for the cannabis industry to promulgate effective drug policies to govern their employees’ use. Not doing so exposes one’s company to significant litigation and liability, especially considering the patchwork of state laws cropping up, which protect employees from workplace discrimination and prohibit employers from taking adverse workplace actions based on their medical marijuana use.
As of January 1, 2020, 11 states have fully legalized marijuana for adult recreational use (Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington), with more expected to legalize this year.
The quickly changing legal climate presents unique considerations for employers operating in any of these 11 states. It is recommended that employers regulate recreational use of marijuana in the workplace in the same manner as alcohol. For instance, considerations for dispensaries include prohibiting recreational employee use during business hours and prohibiting employees from bringing personal cannabis products or devices into the workplace.
If you currently run a program that permits employees to purchase cannabis products at a discount, make sure your workplace policies restrict employee purchases of the company’s products until after they have completed their scheduled shifts. As a best practice, your workplace policies should reemphasize that employees are not permitted to “sample” product, and that all product must be purchased.
Additionally, if you are in a state that prohibits recreational use of marijuana, but permits medical use, while it may seem redundant, it is important to have a written policy that explicitly prohibits recreational use in the workplace.
Drafting policies to regulate the use of medical marijuana in the workplace is a substantially more nuanced endeavor. There are currently 33 states that have legalized cannabis for medicinal purposes. Each state has its own laws and regulations governing what is acceptable as it concerns medical marijuana use and what employers must accommodate.
One thing the vast majority of these laws have in common is that they explicitly state that employers do not have to accommodate an impaired employee in the workplace. As such, it is important that employers include language in their policies that employees are prohibited from being impaired in the workplace. If you have operations in a state that explicitly defines impairment, such as Illinois, it is recommended that your policies track the statute and include the same examples so that your employees know what conduct is unacceptable in the workplace.
In a few states, including Arizona and Delaware, the statutes suggest that for an employer to take an adverse action against an employee on the basis of cannabis use, the individual must be impaired and fail a drug test. If you have operations in one of those states, it is recommended that you adopt a drug and alcohol testing policy and include that if there is reasonable suspicion that an employee is impaired in the workplace, the employee may be required to submit to a drug test, to the extent allowed by law.
In terms of workplace use that does not rise to the level of impairment, to create effective policies, you must carefully look at the laws in the states in which you operate. While many state statutes do not require an employer to allow the medical use of marijuana in the workplace, the question becomes whether an employee may use marijuana before work or during a break outside the workplace. Some states like Arkansas and Connecticut explicitly state that an employer may prohibit an employee from working under the influence of marijuana, which suggests that employers in these states can prohibit the use of marijuana during business hours. However, other states like Nevada specifically state that an employer must make reasonable accommodations for the medical needs of an employee, which suggests that employers in Nevada may have to accommodate use during business hours.
As you can see, there are many complexities to drafting effective policies. The key to drafting policies governing recreational and medical marijuana use is to understand that each workplace is unique, and each state requires a specifically tailored set of policies. With increasing competition in the marketplace, cannabis businesses are primarily focused on survival and profitability; however, a strong workplace marijuana use policy will not only set expectations for employees, it will prove crucial to covering the employer in the event of any legal issues down the road.
Sasha Segall is a member of Akerman LLP’s labor and employment practice group and focuses her practice on employment litigation and counseling, representing companies across a wide variety of industries in all types of employment-related matters. She may be reached at firstname.lastname@example.org. This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.