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It’s really clear that marijuana use has gone mainstream. Estimates tell us about 20% of Americans have used marijuana in the past year with about 12% of those being regular users. So… so we’re really not talking about insignificant numbers. Those figures are representative of a sizable amount of the workforce.
Welcome to The JoyPowered® Workspace Podcast, where we help HR and business leaders embrace joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, an HR consulting practice. With me is my friend and co-host JoDee Curtis, owner of Purple Ink and Powered by Purple Ink.
Our topic today is marijuana and work. I know that sounds fun, JoDee, doesn’t it?
…To talk about… let’s talk about some weed, if we could.
In today’s episode, we’re going to focus on what those of us who lead the people efforts for organizations in geographies all over the US and maybe even globally want to have on our radar as laws continue to change relevant to marijuana. What types of HR policies should be reviewed and possibly updated? What are some potential risks employers want to stay on top of? To guide us, we invited a subject matter expert, Alonzo Martinez. Alonzo is Associate General Counsel at HireRight, the world’s largest provider of background checking services. Alonzo is responsible for monitoring and advising on key litigation, legislation, and regulatory developments that affect employment. As social causes such as fair chance hiring, pay equity, cannabis legalization, privacy, and the #metoo movement evolve, employers are subject to constantly changing compliance obligations. Alonzo’s mission is to help organizations easily understand these complex issues by hosting webinars supported by white papers, infographics, ebooks, blogs, and other materials to help ensure organizations are kept current with actionable information. He’s bringing his knowledge today to the podcast medium.
Thank you so much.
We’re so excited that you’re here. Thank you for making time. We know you’re really busy. So glad to have you.
Thrilled to be here. And thank you for the opportunity to speak with you.
So Alonzo, what are employers worried about regarding marijuana and work?
Well, Susan, there are multiple issues at play. But when I’m speaking with clients, I consistently hear about two central themes. One is sourcing talent, and the second is protecting the workforce and their clients or their patrons. So when employers express concerns about sourcing talent, they’re really concerned about the current state of the job market. And… and if we look at numbers released by the BLS, the Bureau of Labor Statistics, at the end of March, there were around 11.3 million job openings with around 6.7 million new hires. So if those figures hold true, there’s still about a 40% gap between jobs filled and jobs available on a monthly basis. And when we look at the talent pool, if we take a rough average of the statistics that the CDC and NIH have published, it’s really clear that marijuana use has gone mainstream. Estimates tell us about 20% of Americans have used marijuana in the past year with about 12% of those being regular users. So… so we’re really not talking about insignificant numbers. Those figures are representative of a sizable amount of the workforce. That leads me to the second issue, protecting the workforce and a company’s clients or their patrons, and this is where things get far less clear. For many employers, the perception is that marijuana use is inherently bad across the board. But statistics tell us a different and somewhat conflicting story. The National Safety Council tells us that individuals who test positive for marijuana have more industrial accidents, injuries, and experience greater absenteeism compared to those who have tested positive. But then if we compare that to a study by the National Institute of Health studies, that tells us that rates of injury among marijuana users is similar to that of non-users. In all honesty, I think it’s really difficult to correlate these studies, they look at different factors, but it seems logical that marijuana use, just like alcohol use or any other substance that causes impairment, could affect the workplace, which is certainly a concern amongst employers who want safe and productive workforces.
Interesting. Alonzo, Susan and I are from Indiana, and yet I feel like we’re one of the few states that have not legalized marijuana. What is the current state of the marijuana laws across the country?
So JoDee, you’re right. You haven’t seen marijuana legalization in Indiana, but promise me… I bet it’s going to be coming soon. At least it will be considered by your legislature in the very near future. And from a compliance perspective, I would say for employers, especially multi-state employers, these are really challenging times. Think just a few years back. Employers used to be able to have a simple policy that allowed them to disqualify a candidate or terminate an employee based on a drug screen that showed us a positive test for marijuana. But those days have long passed. Employers can no longer rely on this principle that because marijuana is illegal at the federal level, they need not consider what’s happening at the state or local level. The fact of the matter is that the lack of federal legalization or guidance has left us with a messy patchwork of laws that needs to be considered as part of a workplace drug policy, especially when a candidate admits to marijuana use or an employer sees a drug test that’s positive for marijuana. So there are now 38 states that have legalized medical marijuana to varying degrees. The laws of 16 states tell us it’s an employer’s obligation to consider marijuana accommodation, but they don’t necessarily need to require it. So that means an employer doesn’t have to permit off-duty or off-premises drug use if an individual tests positive for marijuana, that an employer can choose to adversely affect that worker’s employment without further consideration of that state’s medical marijuana laws. So that’s what’s going on in 16 states. Those are the really easy states to deal with. There’s another seven states that have no opinion on the matter. They’re completely silent, and they don’t tell us whether or not we need to accommodate marijuana use or not. So ultimately, that becomes a policy decision for an employer. But then there are 15 states where things get far more confusing. And this is where cannabis anti-discrimination measures are in place and where an employer’s reasonable accommodation of a worker’s marijuana use is absolutely required. So that means that in some states, we have to accommodate marijuana under most circumstances. In some states, we don’t. And then we’ll throw recreational marijuana into the mix. There are several states – 19 in fact – that have legalized marijuana for recreational use to varying degrees. And it’s… it really does create this what I consider messy patchwork of laws.
Oh, my gosh. Well, speaking of laws, are there any state laws or local laws even that prohibit marijuana testing for job candidates?
So this is an area of law that I would characterize as a trend that’s gaining traction, and it’s something that your listeners should really be mindful of. This idea of prohibiting marijuana testing started back in 2020, when New York City banned pre-employment testing of job candidates. Now that prohibition has been adopted statewide across the state of New York, which means that employers in New York should not test for marijuana use unless there’s one of three exceptions apply. Just quickly, if testing and adverse action would be required by state or federal law, if it would require that an employer violated federal law, or if that would result in an employer… an employee being impaired while at work. So those are the circumstances upon which an employer in New York state could test. There’s also a testing ban in Philadelphia. There are of course, exceptions, such as DOT regulated jobs. It doesn’t apply to positions that the Philadelphia Commission on Human Relations determine is safety sensitive or not. So that means you gotta wait for the commission to determine… make that determination. That’s not something that the employer can determine. And then, of course, in Philadelphia, there’s the standard exception when testing is required by law or regulation. So while we see these prohibitions in New York City, the state of New York, and Philadelphia, it’s really crossing the eastern seaboard, isn’t it? It’ll be interesting to see if we get this approach on the West Coast, maybe Los Angeles, maybe San Francisco, and then what’s going to happen in the middle of the country as well, maybe we’ll start to see a different approach to that also.
I hate to even ask my next question, because it just keeps getting more complicated. [Laughs]
But can an employer disqualify a candidate from hire based on the results of a positive drug test?
So JoDee, I’m gonna have to give you one of the most lawyerly answers of all time. And that’s it depends.
It depends. [Laughs]
It depends. Yeah, so it depends on the laws of the state or the city that is applicable to that particular candidate. It also depends on whether the user is a medical marijuana user or a recreational marijuana user. We’ll treat those two differently. If the user is a medical user in one of the 15 jurisdictions that require that an employer consider accommodation, then an employer should not disqualify a candidate based solely on the results of a positive test. And then to take one step further, we have to consider recreational marijuana use. So think about states like New Jersey, Nevada, New York, an employer cannot affect a recreational marijuana user’s employment. So really think about that holistically, right? In New Jersey, Nevada, and New York, both medical and recreational marijuana is legal and permissible. So that means any marijuana use must be permitted and must be reasonably accommodated by an employer. So certainly an interesting state of the law.
And Alonzo, when you talk about this medical versus recreational, do people who use it for medical purposes, do they actually have to have a prescription for it? Or how did you determine what… I mean, can they just say, “Oh, I’m using it for medical purposes.”?
So that’s one of the interesting kind of caveats to the law. So remember that marijuana is still a schedule one federally illegal drug, which means it technically can’t be prescribed because physicians can only prescribe lawful drugs. So that means that physicians or individuals who are treating patients can provide recommendations towards marijuana use and those recommendations can be then provided to a dispensary who can provide them with marijuana or cannabis for lawful use. From an employer’s perspective, then, most states, again, have allowed for accommodation of an individual’s medical marijuana use. So like I mentioned, one of the first steps that an employer should consider is determining whether or not an individual is a recreational or medical marijuana user. If they are a medical marijuana user, it is absolutely okay for an employer then to say, “Hey, can I please get a copy of your medical marijuana certification or license or recommendation?” And it would also be okay then to follow up with that prescribing or recommending physician and say, “Is this a reasonable action to take with respect to this particular candidate, and are there any alternate therapeutics that can be prescribed or recommended that might be different from marijuana?” So, absolutely okay for employers to go down that route, post conditional offer.
Well, we’ve been focused so far in our conversation primarily on job candidates, because I think this is when we do most of our drug testing as employers, but for existing employees, are there any differences or nuances we should be paying attention to about maybe employers restrictions on affecting the employment of current employees who are using?
So I think a really good place to start with respect to current employees is recognizing that no law requires that employers permit marijuana use while at work, on call, or on an employer’s premises. But several laws protect the lawful use of marijuana outside of the workplace. And in those cases, the law make it so that it’s no different than having a glass of wine at home or maybe a beer at the bar after work. So we can talk about Illinois, I think this is a really good example. In Illinois, the Right to Privacy in the Workplace Act protects the lawful use of products when an off… worker is off-duty and off-premises. So for example, since marijuana is now lawful in Illinois, an employer has no right to regulate its use when a worker is using that off-duty, off-premises, in their own home. So an employer must reasonably accommodate that use. And that’s where this concept of impairment really comes into play. Impairment in the workplace is an extremely important thing, but it’s also a really tricky thing because it’s very difficult to assess workplace impairment as it relates to marijuana use. So if an employer observes articulable symptoms of impairment, in most cases, they can request that an employee submit to a drug test, and if that drug test is positive for marijuana, they can choose to adversely affect the worker’s employment. But when we talk about articulable symptoms, we can look back to New York for an example. So in New York, it tells us that just because an employer smells marijuana, that doesn’t mean that an individual is impaired by marijuana. So that smell of marijuana, that odor itself, can’t force a drug test. There have to be these visual, articulable symptoms of impairment, and that’s what employers are really going to have to cue into.
Alonzo, you’ve mentioned a couple times about accommodations or reasonable accommodations. How does that play out on marijuana related issues?
I think that the concept of accommodation can be really confusing for employers. When employers have accommodation discussions, while the core issues that they should try and sort through are the same for every candidate, each conversation should be unique to that particular worker’s circumstances. So for most employers, the goal of the conversation should be to assess the reasonable adjustments that an employer could reasonably make that would permit the worker to perform the primary functions of that job. So with that said, some employers go into the accommodation discussion trying to prove how the individual’s marijuana use creates an undue burden to the employer, how it’s harmful to the employer. And that’s really not what the accommodation discussion is intended to do. The accommodation discussion’s intended to be interactive. An employer asks questions, the candidate answers those questions, that could lead an employer down the path to understand how the candidate could be successful in their role and not cause an undue burden or harm to the organization in consideration of that particular worker’s marijuana use. So, what an employer wants to understand are what are the essential functions of the worker’s job and, in their conversation with a candidate, understand how the candidate’s use of marijuana affects their ability to do their job. If there are substantive impacts to the worker’s ability to do the job, then they need to understand how the employer can adjust the role or the work environment or other circumstances reasonably within the employer’s control to permit the worker to lawfully use cannabis off-duty and off-premises, but not create an undue burden to the workforce or to the employer. And depending on the worker’s role, it could be that the employer doesn’t need to adjust the role. No accommodation is required, because the worker’s use of medical cannabis doesn’t impact the worker’s ability to use their job. But on the other hand, an employer may find that an employee’s use or worker’s use of marijuana does create an unreasonable burden. And in that case, accommodation’s not… not required. Do you want to see how this would… would play out in real life with a real world example?
Okay, so let’s… let’s say that we’re evaluating a candidate for a sales role, and as part of that role, they need to drive to visit their prospective customers’ places of work or business or homes, whatever it may be. So the first question to ask is, is driving an essential part of the job? If so, there’s the possibility that the worker could be under the influence of marijuana when asked to drive. So if so, then you could ask the worker to produce a note from the physician who recommended medical marijuana to understand their limitations. Specifically, will marijuana use impact the worker’s ability to drive? And if so, could the employer change the worker’s role so that they don’t have to drive without creating an unreasonable burden to the employer? If not, would the worker consider a different position or a different shift where maybe driving isn’t required? Can the worker get recommendations for an alternative therapeutic, something other than marijuana that would not similarly impair them? Again, this is an interactive process intended to be a little bit of a balancing act. It’s a give and take discussion with the end goal being we want to employ the worker so long as the employer can reasonably do so, even if it isn’t the worker’s preferred role. And of course, I always tell employers, document everything. Remember to document your accommodation discussion. You should be able to explain based on your dialogue with the worker and your assessment why their medical marijuana use causes an unreasonable burden to your organization and why no reasonable alternatives exist for you.
Alonzo, can you recommend any HR policies organizations may want to make sure they have or pay attention to tweaking as we go forward, and maybe the laws where they are… have operations change, or any HR policies that you recommend they never have?
So let’s start with what employers should avoid. I think that that’s kind of the easier conversation. And what I’m really feeling about marijuana laws or this trend of marijuana laws is avoiding zero tolerance policies. The tide of marijuana laws is turning in favor of lawful marijuana users, so I think the days of zero tolerance policies are limited. Now, recognize that zero tolerance policies are very different from drug free work policies. I think that it’s a completely different animal and a different way to kind of approach things. So to build a successful drug free workplace policy, I think it’s important that employers know the states in which they employ people and the laws of those states. That’s first and foremost, right? Recognize what your legal obligations are. So like we mentioned, some states have both medical and recreational marijuana measures with differing standards. So you may not have to accommodate a recreational user, but you may have to accommodate the use of a medical marijuana user, and you can’t disqualify anyone who tests positive solely based on the results of a medical marijuana test, you have to engage in that accommodation discussion. And remember, if you have workers in New Jersey, Nevada, or New York, you can’t adversely impact any cannabis use period unless an exception applies. We also talked about bans to pre-employment testing. Again, Philadelphia, New York state, New York City have all banned pre-employment testing for marijuana. So make sure that you’ve created drug screening packages that exclude marijuana from the drug testing panel. We talked a little bit today about accommodation discussions. Engage in those accommodation discussions and document those accommodation discussions. Those are very important policy and process rules that shouldn’t be left out. And make sure that you’re… the folks in your organization are educated about those particular policies. And again, remember that as you build your policies, legal exceptions could apply that could permit you to disqualify cannabis users from employment, or it could permit you to impact the employment of an existing employee, but those have to be considered on a case by case basis, they can’t be used as a one size fits all exception based on an employer’s industry or work environment. Again, these are all very nuanced discussions, very nuanced decisions that should be built into your policies and processes.
You know, we’ve learned it’s complicated enough just within the United States. But we do have many listeners who live around the world and also we have some clients who have employees all over the world. In general, what’s the landscape look like outside of the US? Are we ahead or behind most countries?
Yeah, so like you said, JoDee, it’s… it’s definitely confusing enough within the United States, and it doesn’t get any easier outside of the United States. But I suppose the good thing, though, for your listeners to be aware of is that we see less impact on a local level and much greater impact at the country-wide level. So we’re not dealing with quite as many laws, but we’re still dealing with a few laws. So let’s just stay in the Americas and talk about Canada, which is the largest country economically to legalize marijuana at this point. They did that back in 2018, and there have been some growing pains in Canada as as they’ve gone through this legalization effort. So much like in the United States, while Canadians can now lawfully use marijuana, they can’t do so at work. So that’s the good thing. But employers still have to engage in this accommodation issue as it relates to medical marijuana use. I should mention that there are both recreational and medical marijuana use, which has been legalized in Canada. The Canadian Human Rights Act requires employers accommodate a person using medical marijuana to the point of undue hardship with a company. Same standard as in the United States when we’re dealing with things at a state level. But there’s generally no need to accommodate recreational use. If we look at Latin America, Latin America countries have taken steps to decriminalize marijuana, which means that possession of small amounts of marijuana will not be prosecuted, but from a legalization perspective, things are moving more slowly. We have Uruguay and Argentina leading the pack. In Mexico, we’ve seen steps to try and legalize marijuana, but we’re not quite there yet. I think Argentina’s law is particularly interesting. In Argentina, personal use of marijuana is now a constitutional right, so that means that employers can’t tread on that right but can still take steps to maintain a drug free workplace. If we look across the pond to the United Kingdom, medical marijuana has been legalized, so if it is rational and proportionate to the job an employer could feasibly present a candidate with a medical questionnaire that asks them about their medical marijuana use after a conditional offer of employment has been extended. An employer in the UK could then assess a candidate’s… a candidate’s ability to perform their job in accordance with the employer’s health and safety policy. But again, it needs to be rational and proportionate to their role. And if we go further to the east to Asia Pacific, marijuana use still remains completely illegal, although Thailand recently decriminalized its possession. Still, that imposes no restrictions on employers. So you can see this concept of a patchwork of laws and no real consensus on how marijuana in the workplace should be treated extends not only in the United States, but across the globe.
Wow. That’s why we need people like you, Alonzo, who’s studying it and staying at top of it. Oh my gosh. Is there any other advice that you might have for our listeners?
So if your listeners have attended any of my other webinars or have heard me on other venues, you know, one of the things that I love to say is “keep evolving.” Cannabis laws will continue to take hold of the country in 2022 and quite frankly, across the world, in the next several years, so it’s really important to stay informed. It’s… it’s important to review the evolving landscape with your legal counsel, which can help you document changes to your policies and your processes. And it’s also important to review this with your drug testing vendors who can help you implement these changes to your policies. And again, most importantly, educate the folks that are managing your policies and your processes so that they’re doing this consistently and across the board. Something else to think about, and this is something that I’ve been telling a lot of our clients recently, is consider publishing your drug free workplace policy and your testing policy on your talent website. I think it helps to be transparent, but it could also act as a deterrent to individuals who don’t align with your policy. They could choose to opt out and look for another employer and that saves you time and expense of vetting them, and you can move on to somebody that better aligns with your culture and your policies. Time to hire is so important right now. So… so why mess around? It’s important to just be transparent.
That is great advice. And I think, you know, it could be a time saver on both ends, too, for the prospective candidate to know that’s part of the policy as well.
Absolutely. If it doesn’t align with a candidate’s own personal culture, then maybe they consider another employer. It’s definitely a benefit for all parties.
Yeah. You know, we are the JoyPowered® podcast, so we always like to ask our guests a question about their joy power. When was the last JoyPowered® moment you enjoyed that work?
That’s a great question, JoDee. And you know, I’m… I’m a really firm believer that a company’s biggest asset is its workforce, so it’s important that employers nurture and care for their workers, and at HireRight, my employer, we recognize that we recognize the immense opportunity we have to learn from a diverse workforce. So it’s brought me incredible joy to be a part of affinity groups and hear my colleagues’ stories, to learn from their life experiences, to recognize and embrace my privilege as incentive to grow personally and professionally. And you know, I engage in these meetings on a weekly basis and I learn from our colleagues and those are JoyPowered® moments. Seeing my colleagues happy and engaged and feeling like they can bring their whole selves to work is what JoyPowered® means to me. I’m so thankful that we embrace that culture at HireRight.
That is terrific. So Alonzo, we’re going to share your contact information and HireRight’s contact information in our show notes, but could you go ahead for our listeners and mention it now in case someone can’t wait for our show notes to come out, and they’re able to contact you?
I love listener engagement. So please reach out to me at LinkedIn, you can find me at LinkedIn slash in slash Alonzo Martinez. I also invite your listeners to review my articles at forbes.com or check out my webinars at the HireRight resource library. But please connect with me. I’d love to hear from you.
Yeah. Great. Thank you so much for coming today. It’s been terrific education, at least for me.
Yes, for me too.
Susan, JoDee, I appreciate the opportunity to speak with you and your listeners. It’s been a fantastic time. Enjoyed it.
Susan, we have a listener question today. They said, “I’ve had a situation come up where the rumor mill has said a job candidate has something negative in their background, and the gossipers fear this individual may slip into our organization without us catching it. Members of leadership have heard the rumors and want to be more involved in the pre-employment background checking process with this candidate. At my company, the background check process is handled only by HR. What I’m hearing from executives in this case are comments like, ‘I would hope we have things in place that keep people with bad backgrounds out and we ensure our employees are safe,’ and I can tell they are doubtful since they are not in the confidential loop. My question is how do you respond to concerned hiring managers who want to see background checks and have me share specific confidential details with them whether we hire the candidate or not?”
Wow, I can see that’s really a pickle. I think probably start with, you know, taking a fresh look at your background check process and confirm in your mind it’s working and achieves the goals your organization’s have for it. I think that sometimes we get stuck in our old patterns and our old processes and we don’t always go back and take a look. Is it serving our needs today? Assuming that you say yes, our background checking process makes sense, it’s helping us achieve our goals, then I think I would want to make sure that my leadership team and all the hiring managers in the organization really understood what was included in the background check, what it is, and what it isn’t. I would like to share with them who our vendor is if we’re outsourcing parts of it. And my guess is most of our listeners probably do outsource a portion of the background checking. Make sure that the organization knows who they are, what their reputation is, so that they have some confidence in this organization that’s out there looking into the backgrounds of your candidates. And I would make sure that they understood, here’s the things we don’t check. I think at some organizations, they think that, well, obviously we’re going to find out if they have any bad driving record, or if they have any past arrest records or just conviction records, or that we’re going to go back and be able to validate their education. You know what? That may not be true. Parts of that may be true, parts may not be true. Let’s make sure they really understand what’s in there and take time to explain what the guidelines are around the confidentiality of information. Fact is, we don’t share personal information to anybody who doesn’t have a need to know basis, and it’s because we don’t want to invite risk into the organization. So I think it’s time to really be transparent about the process and make sure that people are up to speed. They may not like it, but at least they won’t feel like they’re in the dark.
JoDee, how about you?
I 100% agree. I just want to reiterate the importance of the comment you made about the leadership team or hiring managers or even all your people understanding what it is you’re checking when you do a background check. There’s so many assumptions that are made about what is happening and what is not happening. They might not be checking for federal issues, they might only be checking locally, they might be checking state, they… you know, just a wide variety of different kinds of background checks that happen and they’re not all the same.
JoDee, it’s time for in the news. HRmorning.com had an article dated March 9, 2022 by Rachel Mucha, that was called “Rage Quitting.” Well, they had me at rage quitting. I loved the title, so I had to read it. Right?
Rachel cites a study by Skynova as she looks at the rage quitting, or, as you might want to say, in layman’s terms, leaving jobs impulsively without notice or simply just stopped coming into work. Skynova said the top three reasons given for rage quitting are…
Number one, poor management, right? 47% of the people claimed that one.
You know, they always say people don’t leave jobs, they leave their managers. Right?
The number two is toxic boss. 44% felt their boss was poisonous.
Yeah. And think if you have the combination, just of poor management and a toxic boss together. 40% said excessive work stress.
Yikes. The Skynova study showed that 41% of employees who walked out on their jobs without notice, once they take a breath and reflect, say they would like their jobs back.
That did surprise me. But it didn’t surprise me as much as Skynova reporting that 78% of those who tried to get their jobs back are successful.
Wow. Very interesting.
I have to say that’s a 2022 thing, because I think given the scarcity of job candidates today, it probably is the best time in history to leave in a huff and then come back if you really want to. Because if you know the job and maybe you had a bad day and you let off steam and walked out, your employer might be ever so grateful to have you come back and whatever it is that’s bothering you, they may be more willing to address in today’s world than they ever were pre-pandemic.
I agree. Well, thanks for listening today and make it a JoyPowered® day.
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