The legalization of recreational marijuana use is a growing workforce issue. It is currently legal in Spain, Uruguay, and Canada, and in nine US states as well as Washington, D.C., while many other municipalities are working to decriminalize marijuana use. In November, Michigan voters will decide if the state will legalize recreational marijuana use. In fact, more states now have some sort of legislative precedents on the use of marijuana than do not; Oklahoma, Arizona, Utah, Missouri, and Nebraska also have statewide voter initiatives this fall.
The legislation has massive implications, as it will directly affect a state’s workforce and shift the state’s economy. Yet many questions remain. How will the state initiatives hold up against federal law? How will the use of medical marijuana, especially as it relates to the Americans with Disabilities Act (ADA) affect companies’ drug policies? What responsibility do individual hiring agents hold for state and federal compliance? And what are the long-term health and public safety implications of these new statewide initiatives? The answers are, at best, murky.
State or Fed?
Where it was previously standard for companies to have zero tolerance drug policies, recent changes in marijuana legislation are forcing companies to adjust their human resources and drug testing policies to align with these new laws. This is also challenging for workers who could potentially be turned down for jobs because they may not understand the implications of state laws as opposed to federal law: by federal law, marijuana use of any kind is still illegal as it is a Schedule I substance under the federal Controlled Substance Act. For companies that operate on a federal level, this is a major concern.
Francesca Liquori, former National Attorneys General Training & Research Institute Program Counsel, explains, “Employers in states in which marijuana has been legalized must first determine whether their workplace is regulated by The Drug Free Workplace Act. The Act requires that all federal grant recipients and federal contractors adopt a zero tolerance policy at their workplaces and certify to the federal government that their workplaces are drug-free.”
This is especially crucial in the case of transportation workers and first responders such as fire, police and medical officers. Any employers must comply with federal law and policy, including the Department of Transportation’s stringent requirements, but employees and applicants may not be aware of this need. Otherwise skilled — and necessary — employees could be lost before they can even be hired.
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A Matter of Safety
Employers also must worry about marijuana use’s effects on employee performance: “If an employer is not required to comply with the Act, such employer can still institute a zero tolerance policy for those workers in ‘safety-sensitive’ positions,” says Liquori. “A ‘safety-sensitive’ position, generally, is one in which an employee is responsible for the safety of herself or others,” which can cover a broad array of employee positions.
Canada, the most recent country to legalize recreational marijuana use, is now dealing with the potential effects of legalization amid a qualified worker shortage, an issue the US is currently facing. “Legal marijuana would create a new dilemma for employers that long ago adopted drug and alcohol testing for high-risk jobs,” said Kevin Orland and Jen Skerritt, Bloomberg News contributors, in a report released this year. “The prospect of more failed drug tests is a big concern for an energy industry that is expanding and needs more workers. Companies already are having a hard time hiring enough qualified people to perform jobs that are physically demanding and require long stretches in remote locations.”
In the US, low unemployment allows workers to choose among several job offers. But prospective employees may not be aware of the need for employers to comply with federal regulations, or may be over-confident in their rights.
For the staffing industry, being proactive, flexible and aware of all policy changes is important. Ensuring that both the needs of customers and consultants are met while staying up to date with legislation can be challenging. This is especially true for firms serving multiple customers who have different policies and state laws.
Multiple factors prevent many who seek employment from being hired, including a lack of skills or work experience, difficulty finding child care, and having a criminal record. With the possible upheaval brought by marijuana legalization in more and more states, it is more important than ever that companies stay informed and work closely with their communities. Fostering positive staffing relationships while remaining compliant to all laws will be challenging, but will ultimately benefit the bottom line.
