Weed at work: How HR leaders should handle the legalization of marijuana

The workplace conversation around substance use has always been about how to prevent it. But as marajuana becomes legalized across the U.S., are HR leaders equipped to change their stance?  

In 2012, Washington and Colorado were the first states to legalize the recreational use of cannabis. Since then, more and more states have petitioned for the same rights and many have won. As of April 2022, marijuana has been decriminalized in 31 states in accordance with the Marijuana Policy Project, which states that low-levels of marijuana possession are exempt from the ​​possibility of jail time for first-time offenses. Twenty of those states, as well as Washington D.C. and Guam, have made the recreational use of the substance entirely legal. 

This has left the U.S. with varying degrees of accessibility, and HR departments across the nation at a loss for how to handle it at a corporate level.

“Right now it’s a patchwork of states, but remains a federally illegal substance,” says Brett Gelbord, senior counsel with Dykema, focusing on labor and employment issues. “But [for employers], it is certainly something that is developing quickly as more states come online with either adult use statutes or by running into a medical framework.”

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Twenty-nine percent of employees admit to using marajuana on the clock, according to a 2022 survey by workplace insights blog Blind. Legalizing the substance may become easier for them to access it, and harder for employers to penalize them, Gelbord says.

“You have employees who were probably already consuming marijuana who now have legal access to it,” Gelbord says. “And you have employees who may have refrained from engaging but are now going to the fancy dispensary in their neighborhood and buying legal cannabis products.” 

For employers who want to maintain a drug-free workplace, testing still remains riddled with issues. Currently, the only drug tests that exist only identify if cannabis has been in someone’s system up to a month prior, and they do not specify if a person is impaired or intoxicated. For many businesses, it might not be in their best interest to use them. 

“It’s challenging because if you work in a state where it's legal, you have to do your best to make sure that you're staying out of your employees' private lives while they engage in a legal activity off duty,” Gelbord says. “But you want to make sure that people are showing up to work with a clear head. There isn't a test for that.” 

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Excluding high-risk jobs that require full sobriety and are contractually obligated to participate in drug testing, such as airline pilots or truckers, this could act as a deterrent to people applying for work in industries that don’t have these requirements, according to Gelbord. A company with a pre-employment drug testing policy may be missing out on talent because applicants are worried that their marajuana use may cost them their job, which in turn exacerbates the current labor shortage.

The solution isn’t to implement more policies that promote testing, but to instead foster a culture where it’s not taboo to speak about cannabis use, and one where it won’t impact employees’ relationships with work. 

“If you make it clear that you’re not going to be doing random drug testing and that employees are free to do what they like on their off hours, as long as it doesn’t interfere with work, that's empowering for a workforce,” Gelbord says. “It builds a sense of loyalty and trust between the employees and management, which is only good for business.”