3 Ways Legalized Pot Can Be an HR Nightmare

What do you get when you cross legalized pot with businesses in Colorado and Washington State? The answer is no joke. In fact, it may be one of the hardest questions employers in those states – and, perhaps, others in the not too distant future – will ever have to answer.

We recently asked experts writing on JD Supra for their perspective on the implications of marijuana legalization for employers in Washington and Colorado. Some observations:

1. Your drug-free workplace policy might be out of date:

Ingrid Fredeen of NAVEX Global: “Have you reviewed your drug-free workplace policy and updated or revised how you define unlawful drugs? When it comes to marijuana, what will you prohibit—any detectable amount? […] Do you differentiate between testing positive and being under the influence? […] Have you considered how you will deal with positive test results knowing that traces of marijuana can remain in the system long after actual use? Will your processes vary if use is recreational vs. for a legitimate medical use?”

2. Failure to adopt a “zero-tolerance” policy could create problems down the road:

Bill Berger of Brownstein Hyatt Farber Schreck: “The passage of these new laws doesn’t make marijuana safer. For safety reasons alone, an employer may have a difficult time proving it is maintaining a workplace free of known hazards if it once prohibited marijuana and now wishes to permit it. It could be quite difficult to show the presence of marijuana didn’t cause an impairment. Unlike alcohol, marijuana stays in a user’s body for long periods, and it’s difficult to gauge the level of impairment simply from the amount present at any time. […] Companies doing federal work or otherwise obligated to have a zero-tolerance drug policy may be prohibited from adopting a lax attitude towards marijuana use.”

3. Employers that prohibit marijuana use in the workplace are protected by federal laws:

Vance Knapp of Sherman & Howard: “The Department of Justice confirmed that marijuana is still illegal under federal law and that prosecutors will continue to aggressively enforce the federal drug laws. […] Employers are not required to accommodate an employee’s current use of illegal drugs, including marijuana. Moreover, under the Americans with Disabilities Act, an employer can prohibit the illegal use of drugs (including marijuana).”

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