THC is the psychoactive component in cannabis.Įmployers that drug test typically use a five-panel screen that includes amphetamines, cocaine, marijuana, opiates and phencyclidine (PCP). "Employers not covered by federal rules likely have some thoughtful decisions to make about whether to include THC in any or just some drug screening panels, such as pre-employment or post-accident," Morisset said. Department of Transportation's rules, must regularly pass drug tests, regardless of state and local cannabis laws. However, he noted, even where such laws have been passed, there are generally exemptions, including for safety-sensitive positions for those involving driving or piloting vehicles, ships or planes and where testing is required by other laws. Some workers, such as drivers who are subject to the U.S. "Employers who operate in those jurisdictions may need to make adjustments to their existing policies," said Christopher Kelly, an attorney with Cozen O'Connor in Philadelphia. Nevada law bars employers from taking adverse action based on a positive pre-employment marijuana test result. Some jurisdictions, including New York City and Philadelphia, prohibit pre-employment drug testing for marijuana. State laws vary on when a positive marijuana test can be used to discipline or refuse to hire a worker and what steps employers have to take before they can make adverse employment decisions. For example, are they OK with employees using cannabis with clients? Some policy decisions will come down to employers' risk tolerance and culture, she said. "At the end of the day, I expect employers to have these internal discussions and then hopefully memorialize their decisions with updated and marijuana-specific policies," he said.Ĭannabis decriminalization affects multiple aspects of the workplace, Morisset noted, including recruiting efforts, safety plans, drug-testing policies and even social outings with clients. Michael Freimann, an attorney with Greenspoon Marder in Denver, suggested that employers review their policies and practices in light of evolving laws: Will they want to continue to screen applicants? What is their position on off-duty use? "Even states that have legalized cannabis to some degree may still have state laws that prohibit workplace use or even the presence of cannabis or cannabis-containing products at work," Morisset said. She noted that employers can still discipline workers for being high on the job or for bringing cannabis products onto the premises. "The trend is growing across the states to grant employment protections for both adult use and medical use," said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. Some states protect registered medical marijuana patients but not recreational users, while others, such as New Jersey and New York, provide employment protections for both. Newer laws tend to afford more job protections. Off-duty cannabis use is not protected in Colorado because it is illegal under federal law, the court has held. Many of the earlier states to legalize cannabis use, such as California and Colorado, provide few or no job protections for off-duty use. For example, Colorado has a statute prohibiting employers from interfering with employees' lawful off-duty conduct, but the Colorado high court has said that "lawful activity" is defined by both state and federal law. Employers should note, however, that workplace protections vary by state, and some cities have their own rules. "As more and more states legalize recreational cannabis use, employers should make some decisions about whether and to what extent they will be guided by federal law, which still classifies cannabis as a Schedule I drug like heroin and cocaine," said Catharine Morisset, an attorney with Fisher Phillips in Seattle.ĭespite the federal status of cannabis, 37 states have now approved medical marijuana use, and 18 of those states and Washington, D.C., also have approved recreational use. Here's what employers need to know about evolving marijuana laws and their impact on the workplace. Growing acceptance of marijuana use in recent years has led to the proliferation of state laws legalizing medical and recreational cannabis consumption, as well as a push for employment protections for off-duty use.
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