As cannabis usage grows, so does the need for employers to revisit their workplace drug policies

Recreational use of marijuana is legal in New Jersey. However, marijuana is allowed only for medicinal purposes in Pennsylvania and Delaware. Meanwhile, the federal government still defines cannabis — along with LSD, ecstasy and heroin — as a Schedule 1 substance that has “no currently accepted medical use and a high potential for abuse.”

The rules are confusing. And yet, it’s probable that a growing number of your current and prospective employees are using cannabis products. As an employer, where do you draw the line? Do you care if an employee uses cannabis while not on the job? Should you disqualify a candidate because of current cannabis usage?

In these times of tight labor, many of my clients are revisiting their drug policies both for candidates and existing employees, and changing these policies to accommodate cannabis users.

“This is a mental health issue,” said Damian Jordan, the CEO and founder of Phynally, a Philadelphia-based job-search platform that specifically accommodates employers who do not screen out candidates for marijuana usage.

“Many people are using marijuana to treat their conditions,” he said. “If I’m an employer and I want the best for company and culture, to maintain the best employees and also attract the best employees, I need to figure out and understand not only who my job seekers are, [but] what they’re going through and how can I get in front of them to let them know that this is the best company to work for.”

As businesses adjust, one of the first concerns is what it means for an employee to be in an “impaired state.”

If a candidate acknowledges using cannabis for medical reasons, “it’s not an unreasonable question to ask” if the use could impair them on the job, said Jim Devine, a senior vice president and human resources practice leader at Univest Insurance in Lansdale. “If you think that an employee is going to come to work under the influence of cannabis, even if it’s for medical purposes, it’s not somebody that you can really hire to do a job.”

Devine says that consuming marijuana is no different from drinking alcohol. “You can’t come to work if you’re impaired, and an employer doesn’t have an obligation to accommodate you if that’s the case. However, there’s a fine line between asking too many medical questions and trying to get an understanding of what kind of impairment the candidate might experience.”

Employers do need to be in compliance with the Americans With Disabilities Act, which requires companies to reasonably accommodate employees with disabilities. But, according to Devine, this is made more complicated because the ADA is a federal law and, as noted above, the federal government still considers the possession and use of marijuana to be illegal.

“It’s a Catch-22,” he says. “It’s tricky, but you’ll need to dig into the issue further with your employee.”

Some employers, such as those listed on Phynally’s site, have given up screening for cannabis altogether.

“A lot of my clients have just said it isn’t worth it,” said Louis Lessig, a partner at the Brown & Connery law firm in Westmont. “There’s a lot of good reasons for not screening for cannabis, not the least of which is that so many employers are searching for workers and it’s hard enough to keep folks — let alone somebody that may recreationally be using, or was at a sporting event or a concert and inadvertently inhaled, and then it’s going to test positive in their blood for 30 days.”

So is the “drug-free” workplace a thing of the past? It doesn’t have to be.

“Regular random testing is fine,” Devine said. “Just make sure that everybody in the company is subjected to the test, from the CEO on down.” (Note: In Philadelphia, preemployment drug testing for marijuana is prohibited. That’s not the case in the surrounding suburbs.)

In addition to random testing, many employers perform additional drug tests if there’s reason to believe that an employee is under the influence, or when an accident occurs.

Devine has seen policies “where, if an employee refuses to test after reasonable suspicion or post-accident, their employment is terminated,” he said. “Although this is the harshest example. Most will state that the employee is subject to some kind of discipline or even a suspension.”

Your company can also have a zero-tolerance policy specifically for workers that do high-risk jobs, such as driving vehicles, handling hazardous materials, putting up scaffolding, or providing utility services.

This more rigid type of policy is often allowed by both federal and state law. But recent guidance from the New Jersey Cannabis Regulatory Commission says that you can’t terminate an employee just because there’s evidence of cannabis in their system.

» READ MORE: N.J. regulators reiterate that workers can’t be fired for a positive cannabis blood test

The issue, again, is whether or not the employee is impaired from doing their job — and how to determine that.

“Although tests are improving in accuracy, there is no perfect test for detecting present cannabis impairment,” NJ-CRC Executive Director Jeff Brown wrote in a recently issued guidance document.

The best practice, he said, has been for employers to establish protocols to document observed behavior and physical signs of impairment and then use a drug test as verification.

As cannabis usage becomes more commonplace, it’s clear that many employers will treat its consumption in a similar fashion to alcohol. Smart employers are recognizing that just because an employee consumes marijuana on personal time, it shouldn’t preclude the person from employment.

“Does using marijuana mean that a candidate who made it to the top of your list is not qualified for the job, or even less qualified for the job, because they take their medicine at home?” Jordan asked. “Absolutely not.”

Gene Marks is a certified public accountant and the owner of the Marks Group, a technology and financial management consulting firm in Bala Cynwyd.