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Legalization of Marijuana – What it Means to Employers and HR
Has the recent passing of Proposition 64 sent your drug policies up in smoke?
The passing of California’s Proposition 64 may leave many employers and HR pros curious and confused on how to approach this sensitive topic with their employees. It’s not uncommon to offer internal happy hour where employees can enjoy a beer on a Friday afternoon to celebrate the upcoming weekend. Well, what about marijuana? It’s legal now, so can your employees bring baked marijuana goods or light up a smoke in front of co-workers outside your building as if they are taking a cigarette break? That should be legal, right? Well, maybe…
In reality, it’s a lot more complicated than that.
Marijuana remains an illegal Schedule I substance under the Federal Controlled Substances Act. Even under California law, smoking or ingesting marijuana in public will remain unlawful, as will smoking or ingesting marijuana in places where smoking tobacco also is prohibited. Similarly, driving under the influence of marijuana remains illegal. And the last thing an employer wants to be liable for is a DUI caused by an employee following a company-sponsored event!
So what should you do?
Act now to get your policies up to date to avoid having to deal with these nebulous times.
Get your company policies reviewed and revised right away and here are some best practices, tips, and tools to help you bring your drug and alcohol policy up to date. Don’t have a policy? Now might be the right time to create and implement it!
- California employers should review and update workplace policies to ensure they clearly state the company’s drug and alcohol policy.
- With the new law, your policies should include a specific prohibition of possession or use of marijuana, in any form, in the workplace.
- Employees should also be reminded that impairment on the job will not be tolerated, even if the impairment resulted from use of an otherwise legal substance (alcohol, marijuana) off site.
- And, be sure to work with your employment lawyer to indicate the acceptance of alcohol within certain limits (should you wish to).
Remember, a drug-free workplace policy must be followed consistently. Making exceptions for even one employee tends to undermine the effectiveness of a zero-tolerance policy.
Easy right? Well…not quite!
What if you have an employee who needs to use marijuana for medical reasons? Below are the steps we suggest you take. And, be sure to consult with your employment lawyer before taking any action and receive legal advice:
- Ask the employee for a medical note from their doctor stating they need marijuana for medical reasons. (Employers are not required, or authorized,to know the medical reason, as that’s confidential. However, you can request a letter from the employee’s doctor stating that a medical need exists for marijuana.)
- File the medical note away in the employee’s benefits file where it will remain protected for HIPAA purposes and confidential.
- Hold a meeting with the employee to advise them of the following:
- If they use marijuana during work hours they must do this outside of the office and should carry a copy of their medical note with them at all times while at work, or at company-sponsored events and meetings.
- The marijuana is not to be visible to any employees. Nor should any surrounding employees be able to smell it at anytime.
- Remind the employee that this is a confidential matter and should not be discussed outside of the HR department.
At a time when employers are feeling increasing pressure to create collaborative, productive, and engaging work environments, the passing of Proposition 64, and the legalization of recreational marijuana may seem like a threat the safety and productivity of the work place. However, following these guidelines and seeking excellent legal counsel and HR advice to refresh your policies will keep you in the clear and to ensure your team’s safety and.
For guidance regarding “all things HR” and to conduct a thorough review of your HR policies to ensure legal compliance and cultural fit, the Pendolino Group is here to support you and your team.
Please email us on firstname.lastname@example.org if you have any questions.