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Navigating medical marijuana laws

As more states legalize medical or recreational marijuana use, employers should review their employee handbooks to make sure they address current laws.

Although marijuana use is still illegal under federal law, 33 states and Washington, D.C., have legalized medical marijuana use. Eleven of those states and Washington, D.C., also have legalized recreational marijuana use.

A company that works with federal contracts may have an employee handbook that says marijuana use is illegal, but if the company is in a state that has legalized medicinal marijuana it may need to make some accommodations. Even with accommodations, employees are not allowed to be impaired on the job.

Employers find the issue very confusing, which is why the topic comes up a lot.

Nevada is first to ban testing

Nevada has become the first state to ban pre-employment testing for marijuana. The new law, which takes effect Jan. 1, 2020, excludes some employers. Companies seeking candidates to fill such safety-sensitive positions as drivers, firefighters and emergency medical technicians or federal jobs still will be allowed to screen and turn down anyone testing positive for marijuana use. New York City has approved a similar local law that also will take effect in 2020. And, in 2018, Maine became the first state to protect employees who use marijuana (either medical or recreational marijuana) while off-duty.

What employers should do

Employers in states in which medical marijuana use is legal should think about revising their drug-free policies for employees who are registered medical marijuana patients.

Where recreational marijuana use is legal, employers should have guidelines similar to alcohol or tobacco use, such as not smoking pot on breaks. Some people may believe it is all right to eat edible marijuana at work, so rules prohibiting it also should be included in employee handbooks.

Once the employee handbook is updated, the employer should put policies in place to support the handbook.

Catching up to the laws

Society and technology are going to have to catch up to the laws.  We’re all individuals and what may make one person impaired may not make another person impaired.

A company is expected to accommodate employees medically and legally if it doesn’t cause an undue hardship. Employers that don’t accommodate workers face risks to their finances or the company’s reputation. The company doesn’t want to lose clients or have its ability to attract or retain employees negatively affected.

Companies need to be cautious because there has been a shift in court rulings concerning medical marijuana use. Some courts have been finding medical marijuana users are protected under state disability laws. Current tests for marijuana can’t determine whether it was used during the workday or on another day when the employee was off-duty, though, which makes testing for impairment more difficult.

An employee who uses CBD oil could test positive for marijuana use.

Helping employers get through the minefield

I’m here to help employers navigate through the minutiae of addressing evolving marijuana laws. We’re all in this together, and as with anything new, we’ll get through it.

Workshops to start in September

As I mentioned last month, I’m teaming up with Dennis A. McCurdy, CIC, CFP of McCurdy Group, for a free series of Lunch and Learn workshops on Human Resources topics. The workshops will be at noon on the third Wednesday of each month at Dennis’ office at 212 Main St., Sturbridge.

Because people are busy and away on vacations during the summer, we decided to postpone the first workshop until September. The Sept. 18th workshop will focus on Benefits and Secondary Insurance Coverage. We’ll discuss the benefit trends and the questions employers and employees should be asking.

Please join us to learn more about this important topic. Register for the workshop at: Eventbrite or by emailing myself or Dennis McCurdy’s office.

If you have questions, contact me at https://www.melodybeachconsulting.com


Melody L. Beach Consulting Group
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