An Essential Legal Marijuana Guide For US Employers — Here Are The Rules

There’s no way to stop progress, no chance of turning back time, and certainly no way of making the country forget about marijuana. The herb is becoming increasingly more legal across the United States. Five more jurisdictions entered toker territory in the recent 2020 election. We could see more states, too, including New York and Pennsylvania, jumping on the bandwagon next year. And where there is legal weed, there is a slew of people motivated to use it.

Unfortunately, the nation’s cannabis laws can be exceptionally difficult for business owners to understand since the federal government still considers it an illegal drug. Not to mention its legality always seems to differ from state to state. Nevertheless, anyone who owns or even manages a company is being forced to contend with marijuana use in the workplace. Research shows that drug tests for marijuana have increased 35% since 2010. So, it’s crucial to understand the ins-and-outs of legal weed, not only to protect the interest of your place of business but the employees responsible for keeping it running like a well-oiled machine.

Employers need to have a solid understanding of the marijuana laws in their state to avoid cries of discrimination. For now, most legal states do not require employers to accommodate marijuana use. In many cases, the law even allows them to maintain a zero-tolerance policy. Because of how marijuana metabolizes in the body, an employee that got high over the weekend could still technically fail a drug test a month later. And even though they weren’t impaired on the job, employers are still well within their rights to fire a worker for this offense.

That’s zero-tolerance.

Advocates are trying to change this aspect of the law. They want employers to prove impairment before taking disciplinary action. But that’s probably not going to happen until the federal government changes the law first at the national level. But don’t just assume that you can fire all of the potheads. Some medical marijuana states now have stipulations in place that require employers to prove impairment before dismissal. Medical marijuana patients in places like South Dakota, one of the five new legal states, have the same rights as those on prescription drugs. The laws are getting less restrictive, so watch out.

That doesn’t mean marijuana users get to do whatever they want and the employer has to go along with it. Regardless of whether it is legal for recreational or medicinal use, it’s not mandatory in any state for employers to tolerate marijuana use on the job or employees working under the influence. A company has every legal right to discipline or even fire a subordinate who breaks the rules. If they show up to work high, they can be fired. If they get high on the job, they can be fired. If they bring pot to work, they can be fired.

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Also, if the business happens to be one where mandatory drug testing is dictated through federal regulations, an employee can be terminated for a positive marijuana test — no matter what the state law says. If federal law requires that workers pass a drug test — something that is common in manufacturing positions and jobs where heavy equipment is used — they can be terminated for just having pot in their system. It’s a matter of safety, according to Uncle Sam, and it’s been this way since the Reagan Administration.

RELATED: The Truth About MMJ Card Protection In Employment

Meanwhile, some states have made it illegal to drug test applicants before offering them a job. In places like Nevada and New York City, it is against the law for an employer to force a person to pass a pre-employment marijuana test before they are offered the job. But once the employee is hired, the employer has every right to demand they stay clean of THC to maintain their position.

Of course, a company has more things to worry about than watching workers for pot. One in every three Americans now lives in a state where marijuana is legal, so it stands to reason that more workers will use it. Therefore, it is important to understand the marijuana laws in your state. It is also crucial to establish a workplace drug policy and make sure that every employee fully understands the implications. Beyond that, all a company can do to protect itself is to make sure that its management has a grasp of the company’s cannabis policy and the legal procedures for policing it. It is a good idea to consult with an attorney specializing in cannabis law in your state.

RELATED: Smoking Weed After Work Doesn’t Affect Job Performance, Study Finds

It should be pointed out, however, that while being stoned on the job should always be discouraged, just the same as alcohol or any other mind altering substance, firing a person just because they have marijuana in their system might not be the way to go. As we mentioned earlier, marijuana metabolizes differently in the body than any other drug. It can stay in a person’s system for a month or longer after the last use.

This is where companies often fail. They might be quick to terminate a quality employee on the basis that they were high on the job when, in reality, the person had only used marijuana on their personal time off the clock. Companies should be evolving with the times, not trying to hinder growth. Learn how to spot the difference.

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