Do You Need a Policy If Recreational Marijuana Is Legal in Your State?

Oregon will soon join a handful of other states, as well as the District of Columbia, in legalizing recreational marijuana.

As of July 1, 2015, anyone 21 or older can legally possess marijuana within the state of Oregon, and employers should be asking: What is the potential impact on the workplace?

Human resource professionals, who don’t consider this question now, may be surprised by the variety of issues they’ll face as the legalization date approaches.

Your employees WILL have questions

When Oregon voters passed Measure 91 last November, many employers received a flurry of questions from employees who were confused about the new law and their employment rights. We saw a similar reaction in Washington when marijuana was legalized in 2012. There was a wave of questions when the measure first passed, then again when the legalization date arrived.

HR professionals in any state where marijuana possession and use is legal should expect an increasing number of questions from employees. Be prepared to educate employees about the company’s drug policy and how it applies to legalized marijuana. Employees need to understand that even if using marijuana is legal in this state, testing positive at work can impact their job.

For companies that don’t have drug policies currently in effect, preparing for legalized marijuana will take a little longer. A company needs to first decide whether implementing a drug and alcohol policy is right for their workplace, depending on their industry, the safety-sensitive nature of their work environment, and the company culture.

If a company wants to move forward with implementation, they’ll need to make important policy decisions, such as which substances to ban, whether to conduct drug testing, and the consequences of violating the policy. Rolling out a new drug and alcohol policy takes time and effort, requiring communication and training for employees and managers about new rights and responsibilities.

The trouble with zero tolerance policies

Employers who are already conducting drug testing should expect an increase in positive test results. According to Quest Diagnostics, a national lab that provides workplace drug testing, Washington has seen an increase in positive drug tests by 23 percent since marijuana legalization. Employers in Oregon should anticipate a similar outcome once marijuana becomes legally available.

One question that has emerged for many HR professionals is whether an employee who tests positive for marijuana is actually impaired. Urine drug testing is the federal government’s preferred method for testing workers in safety-sensitive positions, and at least one study has shown that cognitive impairment from marijuana use may last up to 28 days.

For these reasons, many employers have “zero tolerance” policies, meaning any presence of marijuana in the system would trigger a positive test result. Zero tolerance is especially appealing for employers in safety-sensitive industries, since any possibility of impairment could jeopardize employee safety.

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Balancing issues

But it’s hard to know whether a positive test result is truly a measure of impairment. For example, someone who used marijuana two weeks ago may test positive, but it’s unknown whether the employee is actually impaired by that previous use.

Due to this uncertainty, some employers are uncomfortable with zero tolerance policies.

One Oregon manufacturer we work with, employing over 200 people, has decided that zero tolerance isn’t a good fit for their company in light of legalized marijuana. However, the company has been grappling with identifying what level of marijuana would trigger a positive test result. The company is looking for a creative way to allow leniency for marijuana use while balancing the safety-sensitive issues at play.

There’s no one-size-fits-all solution

Without more sophisticated testing methods, employers who want to test for marijuana, but don’t want to adopt zero tolerance, are forced to make an educated guess about impairment levels. Some employers have decided to abandon drug testing altogether; we’ve seen several employers in Washington, mostly office environments, choose this route following marijuana legalization. Since safety is less of a factor for these companies, there’s less of an upside to ongoing drug testing.

Legalized marijuana introduces a host of new questions and challenges for HR departments, and there aren’t any one-size-fits-all solutions. Human resource professionals should be prepared to answer questions from employees, as well as evaluate the best strategy and approach to marijuana use in your workplace.

If legalization has become a reality in your state or city, now is the time to review your current drug and alcohol policy and tackle these difficult decisions.

Diane Buisman is a employment attorney and a regional director for Vigilant, a company that has been counseling employers throughout the Northwest and California on complex employment issues for 50 years. Vigilant's staff of labor and employment attorneys, HR specialists and safety experts guide all types of businesses, large and small, through the maze of employment issues, from the everyday to the complex.

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