With 100 patients joining the medical marijuana program daily, and legal recreational use possible in the near future, many say employers should review their drug policies to ensure they aren't boxing out candidates or setting themselves up as litigation targets.
“Because of the very tight labor market that we’re in now, some employers are deciding to take marijuana out of the testing process,” said Trudi Curcione of HR consultancy Avitus Group in Hackensack. “You have to make a decision based on your industry, and if it’s a safety-sensitive position.”
The 3.8 percent U.S. jobless rate is the lowest since 2000, and New Jersey’s is 4.5 percent.
Laura Link, an attorney in Archer law firm’s labor and employment and cannabis law groups, said another quandary involves how to treat employees who have medical marijuana cards.
She noted the Compassionate Use of Medical Marijuana Act of 2014 states that “nothing [requires] an employer to accommodate the medical use of marijuana in any workplace.” But it’s unclear if the language covers off-the-clock use of medical marijuana.
“My cautious approach is unless you have a reason to believe they’re using it at work that you should accommodate that use,” Link said. “[Employers] need to be very careful that they’re not discriminating against an individual because of their disability.”
Said Ian Meklinsky, co-chair of the labor and employment department at Fox Rothschild: “With the recent movement to treat marijuana as medicine and to decriminalize recreational marijuana, testing for THC as a tool to exclude drug users from the workplace may have some serious unintended consequences. [Those include] inadvertent discrimination against people with serious handicaps [or] disabilities who use the drug to treat chronic medical conditions.”
Link cited a 2017 Massachusetts Supreme Court case addressing a woman terminated from her job at a marketing company for failing a drug test, despite telling her employers that she was prescribed medical marijuana to address her Crohn’s disease.
“Massachusetts has similar medical marijuana laws to ours [and] the Massachusetts Supreme Court said that the employer made a mistake,” she noted. “[It ruled that] it’s incumbent upon the employer to see if there is any reasonable accommodation they can provide to allow an employee to do their job.”
Another difficulty involves the nature of drug testing, which detects a drug’s presence rather than impairment.
“There’s no tried-and-true method for determining impairment,” said Dan McKillop, who leads the cannabis law group at Scarinci Hollenbeck.
For that reason, it’s important for HR personnel and business management to be trained in recognizing impairment’s physical manifestation.
“They have to make a judgment call,” McKillop said. “Who knows? The employee may have taken a few too many Advils that morning. Eventually it’ll come down to a determination, short of a blood test, because you’re just not going to have time to do that.”
Meklinsky believes that ultimately, marijuana will be treated similarly to alcohol by most employers, where they take the stance that it’s OK to use but not to come in impaired.
“Tools are being developed to test this,” Meklinsky said.
Nailing down policies and procedures is important as well.
“Your employee handbook obviously has to prohibit on the clock usage, and you’re going to want to document any signs of impairment from someone who comes to work,” McKillop said.
According to Avitus Group’s Curcione, the changing in the medical program and potential of legalizing recreational use don’t mean employers have to totally loosen their standards on marijuana in the workplace.
“It really depends on the industry,” she said. “I know in manufacturing, it’s hard to recruit qualified people — and was even before the job market got tight. You have to see how [turning down candidates who test positive for marijuana] impacts your business. If it has no impact at all, I certainly wouldn’t suggest loosening your standards.
“There are some industries like distribution or tasks that aren’t safety sensitive, and those industries are being more lax. But you’re not going to see that in the surgery room or at a truck driving company.”