The Meaning of State Marijuana Laws for Employers’ Drug Policies

     Abstract
Marijuana use and legalization has sparked a huge debate in the employment sector. Pundits in the legal sector are of the opinion that legalizing marijuana in various states of the US will have an impact on the employment policies of various employers to some extent. The emergence of states like Colorado and recently in Michigan voting for the legalization of marijuana has influenced the below study to explore how the move will impact on the drug policies set by different employers. Additionally, the paper will look into the pros and cons of the state marijuana laws that are set by various states of the US. The set of problems and confusion created between the states marijuana laws and the federal laws will also inform the research paper on the direction to take. From the research conducted, it was found that the marijuana laws slightly impacted the employer policies in the case the employee is found using cannabis in the workplace and is terminated. At this instance, the staff might sue the employer, which might bring the element of confusion in the law. Secondly, the study concluded that there should be harmonization of the marijuana state laws with the federal laws to reduce elements of law confusion. Finally, the employer policies must educate the employees on their rights regarding marijuana use in the work station.

     Introduction

In the past, marijuana was mostly used for medical purposes, but recently, a wave has emerged that is influencing various states in the US and other countries like Canada to legalize the recreational purposes of using marijuana. From the federal laws, marijuana is still categorized under number 1 narcotic substance. Most of the employers’ drug policies are in line with federal laws concerning the use of marijuana. Evidently, there is a need for the various companies’ management to look into their workplace policies and try to match them with the recent trends of state laws accepting to legalize cannabis for recreational use. The most affected employers are those operating in the transport sector, manufacturing sector, assembling sector, and the medical sector. The above sectors are key sectors to the economy; thus is critical to approach the marijuana laws from a neutral perspective. The ultimate decision lies on the employer to try and accommodate the new marijuana laws in the workplace. First, the employer must assess every situation and environment of the work station to ensure no victimization of the staff members in case he/she is found with traces of cannabis while working. Continuous adoption of marijuana laws has informed the current research to look into the meaning and impact of these laws when it comes to employers’ drug policies.

Background

According to the WHO report 2018, cannabis remains the most abused drug in the world. From the WHO report of 2018, about 2.5 percent of the world population consume marijuana compared with other drugs such as cocaine, which is about 0.2 percent of the population. The report further states that cannabis is prevalent among the youth as opposed to the old age. The rapid growth in the use of marijuana is mostly witnessed in continents such as North America and some parts of South America countries like Colombia. The US tops the list of marijuana use in the world due to the availability of a ready market, which is very lucrative in terms of favorable prices. The high number of users is due to the fact that the drug is relatively cheap compared with other drugs like heroin. The US being an industrialized and developed economy of the world, legalizing cannabis is something which cannot be assumed, as the impact the act will have on the workforce might be detrimental to the economy. Even though limited researches have been conducted on the impact of marijuana usage on the workplace in countries such as Canada, the recreational purposes of marijuana might be abused by employees working, which in turn, affects their performance of work duties and assignments. Cerdá et al. 2012 conducted research on how the various 50 states that have tried to legalize medical marijuana are affected in terms of decrease or increase in abuse and dependency rate on work performance.

The impact of cannabis use on health

For the purposes of understanding the impacts marijuana laws will have on the employer policies, it is essential to know various effects of marijuana on the human body. The chemical compositions that exist in cannabis have effects of distorting the chemical balance of the body. One of the components include cannabinoids, which are believed to distort the normal functioning of the body and brain. According to Hall & Lynskey (2016), marijuana is medically used in the treatment of patients suffering from pains which are chronic. Medically, the THC component found in cannabis has the effect of creating impairment vision among users. In the study conducted by Wang et al. (2018), several impacts of marijuana use among the adolescent are as follows:

• The motor coordination skills are impaired as one is not in a position to make an informed judgment.
• Due to affecting the brain, panic attacks might arise and cases of increased paranoids.
• The smoke from marijuana affects the breathing system and people experience coughing symptoms.
• After smoking cannabis, adolescents feel restless and high level of irritation; thus less concentration on activities.
• The effects of feeling anxious, fatigue and drowsiness result from continuous use of cannabis.

Truly, looking at the above effects, there is a huge concern among the employers in case a worker uses the drug while working. Taking an example of people working in operating machine sector, in case they are impaired visually due to smoking marijuana, there is a likelihood of injuring themselves and also resulting in catastrophic repercussions if not carefully handled. Involving the employment sector as one of the major stakeholders is an important move which states must take into account before taking a decision of decriminalizing marijuana use for recreational reasons.

Impact of legalization of marijuana on the employment law

With the rate of increase in the legalization of marijuana, the Federal law still prohibits the processing, selling, and transportation of the drug. The confusion of which law to follow either the federal law on marijuana or the marijuana state laws has immensely affected companies and enterprises employment laws on drug and substance abuse. Apparently, users of marijuana abuse the drug secretly by selling and processing it in large quantities. Even if the legalization is meant for recreational use in small quantities, brokers and unscrupulous business people, especially the drug traffickers will take advantage of the marijuana laws to import the drug in large quantities to the US. Some people have been smoking the drug hideously, but legalizing it, will provide the opportunity to openly smoke and encourage other people to join the cannabis club of users. The study conducted by Ammerman et al. (2015), indicated that after the drug was legalized in the state of Colorado, there was an upsurge use of the drug by 20 percent.
The first law is the workplace drug-free act, which provides a guideline for all the employers such the contractors on how to create an environment that is free from any drug abuse. The federal law ties contractors through certificate acquisition to confirm the workplace environment is free from any kind of drug usage. In such a drug-free environment, the employer has the responsibility of educating the workers on the negative effects of using drugs and in addition, offer any assistance like a referral to rehabilitation centers, where drug addicts receive counseling advice. In some cases, the employers can set a counseling and guidance office within the organization to teach workers on how to avoid and cope with drug problems. When it comes to the employee, he/she has the duty of informing the employer of any previous use of drugs and any instances of conviction on the same matter. By openly confessing about the drug abuse, a good employer will create strategies for improving work relationship environment of the workers through education and encouragement to promote drug-free place of work.
One shortcoming of the Act is that employers have no mandatory obligation to conduct drug testing on the workers. Thus, an employee cannot force the employee to take a drug test. Without taking a test on the drug content of a worker, there is no basis which the employer can use in sacking or instituting disciplinary measures against him/her. The process involved testing marijuana is a bit involved, which aggravates the problem it poses to the zero tolerance drug policy set by employers. The only person who has the mandate under the law to test for drug substance is the government. The test carried out on the presence of marijuana in the body is through an indication of THC on the solution provided. The problem with only testing for THC is, the test has no ability to indicate impairment among the persons using the drug. Pacula (2010), affirms that symptoms of being visually impaired due to consuming marijuana is important for the employer to make a decision of whether taking employee for disciplinary actions or rehabilitating to reduce instances of accidents on the workplace.
Another Act is the (ADA) American with Disabilities Act, which bars employers from discriminating persons with disabilities including people using marijuana on medical grounds if they are qualified. The employers have the responsibility of issuing accommodation to the disable qualified workers. Various cases have been brought in courts concerning the classification of persons using marijuana for medical purposes to be categorized under the ADA Act. In extension, there is a heated debate of whether employers have the obligation or not of accepting employees using the drug on medical ground. Tucker (2011), in the study, has highlighted instances and cases where a majority of the courts are of the opinion that employers have no legal obligation to admit employees using marijuana to treat ailments under the ADA Act. In the courts’ opinions, the ADA Act was not created to favor acts of marijuana use, which is classified under narcotic one drug abuse. With the increasing wave on the legalization of cannabis, the courts might one day accept the classification of marijuana patients under the ADA, which will compel employers to employ them and desist from shunning them away. In the event courts pass the above judgment, the employers’ policies on drug-free work environment will be jeopardized. To be on the safer side, the employers should avoid instances of discriminating workers on the basis of using marijuana on medical purposes and focus on the personal choice of the employee. The different states which have legalized marijuana do not have legal prohibitions when it comes to employee termination if found using marijuana in the workplace. Even if an employee brings such a case to court, definitely, it will be dismissed. As the trend of the legalization of cannabis is on the move, employers must keenly work with the state governments to avoid legal tussles that might affect their business.

Marijuana laws and employers drug policies

Even though there is a spirited fight to legalize marijuana in most states of the US, the employers through their various federations have stood in support of their stringent policies on drugs usage while at work. The most challenge is on the job applicants and the HR of an organization. In the process of receiving job applications, the HR is faced with a dilemma of accepting or not accepting a job applicant due to a problem of marijuana use, which company policy prohibits but state laws accept. In the opinion of Pacula et al. (2015), the state laws are making it difficult for the employers in future to find workers who are drug-free and can easily pass the drug test set by the organization. The study conducted by Dempsey (2017) confirmed that many employers are constantly complaining of employees using marijuana have high levels of absenteeism, performs poorly and are susceptible to creating disturbances at the workplace. The advocators of the cannabis are of the opinion that off-duty use of the drug is fine, which is in agreement with state marijuana laws of legalizing the drug for leisure purposes. The employers are still holding their drug test policies even if the employee comes to work morning, he/she must be tested for drug use. The hardstand by employers is a recipe for creating friction between the state laws concerning marijuana use and employers set policies of zero tolerance to drugs.

The costs employers will incur due to legalization of marijuana

Enterprises and business people are meeting in various states to try and come up with bodies that will create a strong voice for extending selling of marijuana to legalized states. The marijuana business personalities are looking at the sector as a lucrative market for the future. The growth of the market will mean more users of cannabis. Employers have to battle with two cost implications of state legalization of the drug. First, it is the loss they will incur due to the reduction in the productivity level of the firm. From the discussion on the health effects of using marijuana, it is evidence that cannabis impairs and affect the motor skills of coordination. An employee exhibiting the above symptoms will not perform work assignments effectively; thus the production rate of the firm will reduce significantly. According to the study by Hall & Lynskey (2016), many employees have admitted to showing to work the following day late and being affected mentally after using marijuana. The second problem is lawsuits that might arise due to various states legalizing marijuana. The issue of legalization will open a new era of numerous litigation cases that will ultimately affect the labor supply and flexibility. The collision between employers and employees will be fueled by marijuana laws; thus affecting negatively the good working environment.
Despite the legal minds trying to use their law skills in convincing the workplace recreation use of marijuana, the employers are still fighting hard to remain drug-free work station. Other drugs like tobacco have not achieved what the marijuana laws have received so far. The protection status through legalization by states implies a multitude of complications which employers must grapple with to cope with some of the drug users working in their offices. To avoid cases of the high cost of litigation of marijuana-related cases, employers must keenly study the marijuana laws and try as much as possible to harmonize some of their work policies with them to avoid frictions.  The employers also have a basis of defending themselves in case of legal tussle by inferring to the federal law concerning prohibiting the use and selling of marijuana.
To some extent, the employers have a duty of creating a safe working environment for the employees. Employers obligations only relate to work duties performed by the employees; thus the use of marijuana must be regulated by the employer on the workplace to protect himself and the employee from any negative incidences that might arise due to impairment of the person operating the machines at work. Using the legislation on occupational health and safety, the employers’ policies should deny users of marijuana to smoke the substance at work or even come to work while still having hangover effects of marijuana. Taking due diligence measures at work is critical for both the employer and the employee. Additionally, the employers should put a sense of education to the workers concerning coming to work having smoked weed as it may lead to disastrous impacts, which actually can be avoided. The drug-free environment should be the most priority of employers irrespective of the legalization, as later, the positive impacts of stringent employment laws will benefit employer and worker greatly.
Conclusion and Recommendations
From the discussion, it is evident that legalization of marijuana is not expected to stop but continue to other states; thus employers will continue to face tough times in the future. Litigation cases are expected to increase if the tussle between the federal law and state marijuana laws are not resolved soon. The first recommendation to the employer is fully understanding the laws relating to marijuana. The information gathered on such laws should influence their decision process concerning workers use of marijuana. Secondly, before an employee joins the organization, he/she should read through the policies of the company and first agree through signing for familiarity purposes to avoid conflicts arising later. Thirdly, clearly knowing their rights as employers in the federal and state laws will ensure they protect themselves from unfair treatment in case of a tussle. Lastly, by educating the employee to be accountable for the actions they take, especially during work times, will teach the workers to be responsible and avoid using marijuana, which might endanger their lives at work.
 
References
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Dempsey, J. S. (2017). The Impact of Legal Marijuana Use on the Workplace: Should Employers Hire Marijuana Users?. Advocate.
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