How will thousands of employers in Colorado and Washington deal with the recent legalization of marijuana and the impact it may have on their workforce? How will it impact their employment screening policy? The answer is that most still don’t know. It’s a complicated issue made even more complex by the rather confusing new laws.
Washington’s Initiative 502 went into effect on December 6, closely followed by Colorado’s Amendment 64 on December 10. Both laws make it legal for adults to carry up to one ounce of marijuana for private use. In Colorado, it is also legal to own up to six marijuana plants. In Washington, it is technically illegal to grow them. In both states, selling or distributing the substance is still illegal and prosecuted as a felony. Both states have one year to establish rules for the legal growth and distribution of the product.
To say employers are concerned about the implications of the new laws would be putting it lightly. Twenty business groups in Colorado have already appealed to U.S. Attorney General Eric Holder to enforce federal laws prohibiting marijuana possession and use. It seems rather unlikely that he will, as President Barack Obama was quoted last week as saying, “It does not make sense from a prioritization point of view for us to focus on recreational drug users in a state that has already said that under state law that’s legal.”
Understandably, no one wants a ‘high’ employee on the job. According to the National Institute on Drug Abuse, marijuana use can impair balance, coordination, and recreation time as well as make learning and performing new tasks difficult. The best-case scenario is reduced productivity, while the worst includes life-endangering mistakes.
But how will employers keep their employees from using the drug before coming to work? And if employees arrive at their workplace under the influence, can employers terminate them for doing something technically legal on their off hours? While some businesses will be able to set their own rules, others will still have to conform to federal law. These include industries regulated by the U.S. Departments of Transportation, Energy and Defense as well as companies that receive federal grants and contracts.
In addition to policing the drug use of current employees, the new laws may complicate the hiring process. For example, will it be legal for employers to reject applicants who have marijuana related drug convictions in their pasts, revealed by the employment background check, if possession and use is no longer illegal?
What You Can Do
If you’re a business owner or human resources professional in Colorado or Washington, now is the time to clarify your company’s employment screening and drug policy and ensure your staff understands it completely. Don’t wait for finalization of the remaining aspects of the law (namely, growing and selling). The sooner you act, the better established your policy will be when the full implication of these new laws become apparent.