An increase in medical cannabis use around the country is prompting employers to reconsider their workplace policies, which have traditionally chastised positive drug test results for THC metabolites. Today, more and more HR departments are adopting inclusive policies that take their workers’ needs into account, creating a non-discriminatory work environment for workers who consume cannabis for a medical condition.
Despite a range of different opinions on the effectiveness, safety, and ethics of marijuana in the workplace, 38 states currently permit qualifying patients to use cannabis as part of their medical treatment. Workplaces must adapt to this, creating fair and safe workplace drug policies that take worker well-being—as well as workplace safety—into account.
Importance of Inclusive Policies
In 2020, an estimated 2.5% of the adult U.S. population used medical marijuana, accounting for around 8.3 million people going by the census data for that year. This is a considerable increase from 2013 when only 1.2% of adults reported using cannabis for medical purposes, and shows a clear upward trajectory in the number of adults turning to cannabis for the alleviation of symptoms connected to a range of conditions, from chronic pain to psychological disorders such as depression and anxiety.
Legally speaking, state and federal laws are often in disagreement on the legality of marijuana (marijuana is still federally illegal), so adapting to the changing landscape can be confusing. However, in states with a medical marijuana program, creating a more inclusive and open workplace is in the best interests of both medical cannabis patients and their employers.
ADA Does Not Protect Medical Users From Discrimination
The Americans with Disabilities Act obliges employers to make reasonable accommodations to enable workers with disabilities to perform the most important functions of their job to the best of their abilities. The ADA, however, doesn’t protect employees who take drugs that are classed as illegal under the Controlled Substances Act, including cannabis.
A potential loophole for cannabis users is a rule for those who take a drug “under supervision by a licensed healthcare professional or other uses authorized by the Controlled Substances Act,” which can include medical marijuana. However, federal judges have ruled more than once that medical marijuana users aren’t covered by this exception.
Although the ADA doesn’t protect medical marijuana users from discrimination and possible dismissal as a result of their cannabis use, workplaces can make the decision themselves to embrace an inclusive policy for workers who take medical marijuana to manage a debilitating health condition.
How Different Marijuana Laws Affect the Workplace
The federal Controlled Substances Act—as well as state law in many cases—doesn’t uphold the right to use medical marijuana at work (if it is against company policy) since marijuana is an illegal substance at the federal level. Even if an individual has a marijuana card, it is still considered illegal drug use under federal law. Some states, however, have created laws to offer some protection to medical cannabis users:
- Selected states, including Pennsylvania and West Virginia, only allow disciplinary action if the employee’s medical use of marijuana leads to a drop in performance.
- Some states prohibit discrimination against medical marijuana users on the part of employers. In five states, medical marijuana users can’t be disciplined or fired if they fail a drug test for marijuana.
Here are a few other notable state laws:
- Oregon was the first state to decriminalize recreational cannabis use. However, it doesn’t provide any workplace protections for medical marijuana users.
- 12 or more states have employment laws prohibiting employers from discriminating against employees for their medical marijuana patient status.
- Nevada is the only state that requires employers to attempt to make reasonable accommodations for employees who have a valid medical marijuana patient ID card.
Tips for a Cannabis-Inclusive Workplace
An inclusive workplace is a happy and productive workplace. By implementing some simple policies, your place of work can become more cannabis-inclusive:
- Promote an open-door policy. Employees are more likely to be open about their condition and the accommodations needed if they feel comfortable speaking to their managers. An open-door policy fosters trust and also improves worker well-being as employers will have the information they need to make any necessary changes or exceptions.
- Set clear expectations for off-duty cannabis use. Companies are well within their rights to prohibit cannabis use before, at, or during work. However, the off-duty policy must be clear.
- Educate yourself on your state’s laws. Laws regarding legal marijuana differ from state to state. Some states consider medical marijuana users to be members of a protected class, therefore, companies must tread carefully when dismissing or disciplining them.
Keys to a Cannabis-Inclusive Workplace Policy
A cannabis-inclusive workplace should first and foremost have a clearly stated policy for current and potential employees. These are a few recommendations:
- Encourage prospective employees to present their medical marijuana card during the interview process (if they have one) so their condition can be taken into account, especially if you conduct pre-employment testing.
- Set clear expectations and develop a clear and fair disciplinary system regarding marijuana use in the workplace and before work.
- Clearly state which behaviors constitute reasonable suspicion of intoxication.
- Make expectations regarding “off-duty” use explicit.
- Make it understood under which conditions you can subject an employee to a drug test, and the consequences of a positive marijuana test (with and without a valid MMJ card).
- Make it clear if there are any exceptions to the policy that the company will take into account.
Inclusive Policy for MMJ Patients Offers Benefits For All
With laws and attitudes at all levels of society changing, it’s time for the workplace to become a more inclusive place for medical cannabis users. Additionally, workers that rely on marijuana to manage their symptoms may work more effectively when they are able to take their medication outside of work hours to ease pain and other debilitating symptoms.
Creating cannabis-inclusive policies can be as simple as adopting clear rules regarding off-duty consumption, and developing a clear disciplinary policy for violations such as coming to work under the influence of cannabis. Communication, education, and reasonable accommodations can make your workplace more inclusive for medical cannabis patients, creating a space where people are judged only on the quality of their work.