Elections tend to revolve around red and blue states, but a slew of ballot questions regarding medical marijuana might be turning some states green this November. On Election Day, voters in at least nine states will consider various measures that would decriminalize or legalize either the medical or recreational use of marijuana.
The specifics of each ballot question and their contexts are different, but employers everywhere should be aware of how the changing marijuana landscape affects their business and its employment policies. As states legalize and decriminalize on an individual basis, the federal government maintains that cannabis is an illegal substance, creating a lack of uniformity around marijuana regulations. Naturally, this has bred confusion among employers as to what is expected of them when it comes to hiring practices and drug screening.
To find out what you need to know about the potential changes on the horizon and how they impact your business, Business News Daily spoke with Dr. Todd Simo, chief medical officer at employment screening company HireRight.
Business News Daily: Tell us a bit about the current state of cannabis policy in the U.S.
Dr. Todd Simo: Today, there are 24 states that offer medical marijuana as a recommendation for people that fall under some form of the Compassionate Care Act. Recreational marijuana is decriminalized to buy, have and smoke a certain amount of at any one time [in] Colorado, Oregon, Washington, Alaska and D.C. I always cringe when I hear someone say it's been "legalized"; it's not legal in the sense that I could buy 50 cartons of cigarettes and keep them in the trunk of my car. It's still truly illegal from a federal perspective, so you can't cross state lines or anything with it.
BND: What are employer concerns surrounding medical and decriminalized marijuana?
Simo: Depending on what state they're in, the rules for employment are vastly different. If [they're] in Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York or Pennsylvania … the employer should do some due diligence in regards to accommodating [an employee who uses medical marijuana]. You can terminate them if they show up impaired to work … but you can't arbitrarily say they tested positive and then terminate them or deny them employment. The rest of the 24 states [with medical marijuana programs] and D.C. basically fall into two categories: either there's case law that says the regulation allows employers to not hire or terminate for cause due to a positive drug screening; or the regulations are essentially silent and there's no mandated accommodation in those states.
So, the question for employers is, do you accommodate [marijuana users] as a standard practice or do you do due diligence and decide in which cases you have to accommodate? The employers we speak to split about 50/50. You really have to know what the rules are for accommodation where you're operating; otherwise, you might end up with a wrongful termination case on your hands.
BND: In what ways are employers responding to the changes in state laws governing marijuana?
Simo: In our last benchmarking report, [52 percent] of our clients that responded said they don't even have a policy in place with regards to medical marijuana, even though many of them are operating in states that have a medical marijuana program. About 39 percent don't accommodate medical marijuana use at all and have no plans to. We have a huge [clientele] in the transportation industry, and the regulations they fall under say they just automatically can't accommodate – the federal government still says, "No, you can't." So, those companies have a policy that arbitrarily draws a line that says you can't cross it at all.
Author's note: The benchmarking report also states that about 5 percent of HireRight's responding clients do not currently accommodate marijuana use, but plan to within the year. Another 5 percent of respondents already have policies accommodating medical marijuana use.
BND: What advice can you offer to employers who are trying to rework their accommodation policies as marijuana laws change?
Simo: Work with your employment attorney to get the right language into your policies. Sometimes accommodation can be easy, like in the case of a receptionist, which is not a safety-intensive duty. But you might not want someone running the overhead crane in a munitions plant if they have a condition requiring medical marijuana. From an ADA and accommodation perspective, you have to look at it not only by the state you're in, but the job categories that you're filling.
Half of our clients haven't even looked at [marijuana reforms] in terms of their company policies. That's something I encourage everyone to look at. The landscape is changing and they should really look at where they're operating and what to do in regards to company policy. That way, when the first case happens they won't have to scramble to figure out a de facto policy. They'll have the levers in place to make the appropriate action from a hiring decision.
The above interview has been edited for brevity and clarity.