Shawnee Love   •  
February 9, 2018

Seems like a lot of employers are wondering what to do about the upcoming legalization of the substance affectionately known as mary jane (also weed, pot, cannabis, etc.)

Here are some don’ts and do’s that I hope are helpful:

DON’T

1. Panic.   There is time.  The legalization isn’t happening till July 1st.  Also, just being legalized doesn’t mean everyone is going to suddenly start using it.  It is likely that at least initially, the people already using it will continue and those who aren’t using it won’t immediately start. Hint: If you are getting questions, chances are those are the people already using or they manage people who are using.  The good news is, if people are already using and it isn’t wreaking havoc on your workplace, then you have a hint of how it will be once it is legal.
2. Worry. Legalization doesn’t guarantee employees can do it at work. I expect the future law to treat pot more like alcohol than cigarettes, so recreational use at work will likely still be something you can restrict if not prohibit.  The tricky part of prohibiting weed at work for recreational users is the ability to know when someone is impaired.  There isn’t a reliable test for current impairment as far as I know.  I expect there are R&D labs working on that as we speak, but until they get the equivalent of a breathalyzer, employers are stuck with their own senses and best judgement. (More on that in a future blog.)
3. Assume.  Just because people smoke weed doesn’t mean they are “potheads” any more than drinking alcohol means someone is a “drunk”.  This will be hard for some folks to wrap their heads around, but a necessary opinion reset nevertheless.

DO

1. Create (a policy).  Hopefully, you already have employment policies, so adding in marijuana at work is a fairly simple fix.  Also, you might want to take a look at how other policies such as appearance, work performance or safety will need to be adjusted to incorporate legalized marijuana use.
2. Differentiate.  It is important to distinguish recreational users (see “Don’t worry”) from medical users (whether due to addiction or therapy for another illness).  Using for medical purposes is an exception which employers will have a duty to accommodate up to the point of undue hardship.  At the same time, like any other disability and/or medication which could affect performance, you have a right to ask for a prognosis from a medical doctor and/or clarification regarding fitness to work.  Your policy handbook should cover both.
3. Educate.  Discuss with and train employees about your company’s policy regarding marijuana at work before July 1st to ensure everyone is on the same page.

There’s no question this legislation change is going to have implications for workplaces.  Setting clear expectations up front will reduce some of the confusion and challenge and ensure your employees know what to expect.

As usual, we welcome comments and questions.