The Future of Workplace Drug Policies Amid Marijuana Rescheduling

The landscape of cannabis regulation is undergoing significant shifts, and employers must stay abreast of these changes to navigate the evolving legal environment effectively. The Biden administration's proposal to reschedule marijuana from a Schedule I controlled substance to a less dangerous Schedule III drug under the Controlled Substances Act marks a pivotal moment. This potential reclassification could have profound implications for workplace policies, drug testing practices, and the accommodation of medical marijuana use.

?

Understanding the Rescheduling Proposal

Under current federal law, marijuana is classified as a Schedule I substance, indicating a high potential for abuse and no accepted medical use. Rescheduling it to Schedule III would acknowledge its medical benefits and reduce the associated legal penalties. This change could encourage more employers to permit off-duty cannabis use, aligning with the growing number of states that have legalized medical or recreational marijuana.

?

Implications for Workplace Drug Testing

Many employers have already begun to reconsider their drug testing policies regarding marijuana. Industries not involving safety-sensitive positions often choose to forgo pre-employment marijuana testing to widen their talent pool. According to Nancy Delogu, an attorney with Littler in Washington, D.C., "Many employers already find it burdensome to conduct marijuana testing, particularly pre-hire marijuana testing."

However, employers in sectors such as manufacturing, healthcare, transportation, and warehousing continue to enforce strict drug-free workplace policies due to safety concerns. These employers are more likely to maintain zero-tolerance policies and conduct regular testing to prevent workplace accidents and ensure employee safety.

?

Medical Marijuana and Workplace Accommodations

The rescheduling of marijuana could lead to an increase in the availability of FDA-approved medications containing THC, marijuana's psychoactive component. This shift might necessitate employers to accommodate employees who use medical marijuana under federal law. Delogu notes, "If marijuana is rescheduled, it’s possible some individuals will be entitled under federal law to use marijuana products to treat medical conditions at work."

Employers must balance accommodating legitimate medical needs with maintaining a safe workplace. While on-the-job use or impairment can still be prohibited, employers should be prepared to engage in an interactive process to determine reasonable accommodations for employees using medical marijuana.

?

Policy Revisions and Legal Compliance

Given the rapidly changing legal landscape, employers should proactively update their drug and alcohol policies. Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y., advises, "Employers should strive to update drug-testing policies to comply with all applicable federal, state, and local laws regarding marijuana."

This is particularly crucial in states and municipalities that have enacted laws restricting or prohibiting marijuana testing, such as California, New York, Washington State, and Philadelphia. Employers operating in multiple jurisdictions must ensure their policies are compliant in each location.

?

Challenges in Zero-Tolerance Policies

Employers maintaining zero-tolerance policies may face challenges, especially in states that have legalized marijuana in some form. Jim Reidy, an attorney with Sheehan Phinney in Manchester, N.H., suggests that employers focus on compliance with applicable state cannabis laws while ensuring workplace safety.

In states without legal marijuana use, employers might need to adjust their perceptions and policies if federal rescheduling occurs. Russo points out, "Those employers will have to shift their perception of marijuana as being unacceptable for all purposes to allowing it for approved medical use under federal law."

?

Training and Supervisor Awareness

Detecting impairment due to marijuana use can be challenging, particularly with the rise of edibles and other consumption methods that lack the telltale odor of smoked cannabis. Employers should invest in training supervisors to recognize signs of impairment and handle such situations appropriately.

Reidy emphasizes the importance of training, stating, "Employers should train their supervisors on recognizing impairment and addressing it properly in the states where marijuana testing is prohibited."

?

Employee Assistance Programs and Wellness Initiatives

Implementing Employee Assistance Programs (EAPs) can be an effective strategy to support employees dealing with substance misuse issues. These programs provide resources and education on the dangers of substance abuse, promoting a healthier workforce.

Reidy adds, "Offering programs—such as employee assistance programs—that educate employees about the dangers of substance misuse and assisting those who want to improve their health often makes sense."

?

Real-World Considerations for Employers

With 38 states and the District of Columbia allowing medical marijuana use, and 24 states plus D.C. permitting recreational use as of October 2023, employers must navigate a complex web of federal and state regulations. Employers should:

1. Review and Update Policies: Axis HR Solutions can help employers regularly update drug and alcohol policies to reflect current laws and company positions on marijuana use.
2. Ensure Legal Compliance: Axis HR Solutions can help employers stay informed about federal, state, and local laws to ensure policies do not inadvertently violate employee rights.
3. Educate and Train Staff: Axis HR Solutions can provide training for HR professionals, managers, and supervisors on the implications of marijuana use and how to address related workplace issues.
4. Focus on Safety: Prioritize safety by enforcing policies that prohibit on-the-job impairment, especially in safety-sensitive roles.
5. Engage in Interactive Processes: Be prepared to discuss accommodations for medical marijuana users, considering each situation individually.
6. Implement EAPs: Offer support programs to assist employees struggling with substance misuse, promoting overall well-being.

?

Navigating the Future with Axis HR Solutions

The potential rescheduling of marijuana underscores the need for employers to adapt to changing legal and social landscapes. Navigating these complexities requires a nuanced understanding of employment law, regulatory compliance, and organizational development strategies.

At Axis HR Solutions, we specialize in guiding businesses through these challenges. Our team of experts offers tailored consulting services to help you update your policies, train your staff, and implement programs that support both your employees and your organization's goals.

Let us partner with you to create a safe, compliant, and productive workplace. Visit axishrky.com to learn more about how we can assist you in managing the implications of marijuana rescheduling and other HR matters.