Is it time for us to rethink our employment policies related to recreational marijuana?

An Opinion Piece by John Gonzales

As of the writing of this piece, four states and the District of Columbia have legalized recreational marijuana; they include Alaska, Washington, Oregon and Colorado. On November 8th, voters in five additional states will vote on whether or not to follow suit; and where there’s smoke, there is indeed fire.

Recreational Marijuana — Do your policies prohibit hiring on the basis of marijuana use?

A recent study published online in Lancet Psychiatry found a shifting pattern (increased usage) of marijuana consumption in the USA. The authors of the study state that understanding the trends in marijuana use “is relevant for policy makers who continue to consider whether and how to modify laws related to marijuana.” Shouldn’t this same understanding and modification of laws (or policies) be equally important for our industry?  

Consider last Friday. Remember? Several of your employees were talking about the upcoming game on Sunday and their plans for getting together and tailgating. They openly discussed plans for a big win, pizza and beer – lots of beer. Are these employees at risk for losing their jobs on Monday if they are selected for a random drug test? Probably not, unless they continue drinking well into the wee-hours of Monday morning, because alcohol is typically metabolized by the body within 6 hours.  

However, THC (tetrahydrocannabinol) — the chemical responsible for most of marijuana’s psychological effects — stays in the system for approximately 30 days. So the employees who legally choose to smoke pot on Sunday, instead of drinking, are selected for a random drug test on Monday and . . . buh-bye.

As for your future employees, the National Institute on Drug Abuse finds that “the majority of high school seniors do not think occasional marijuana smoking is harmful, with only 31.9 percent saying that regular use puts the user at great risk compared to 78.6 percent in 1991.” See a trend?

You probably screen new hires for drug use and eliminate candidates who either admit to using pot or test positive for using. Do the math: increased usage of marijuana; expanding legalization; growing belief in the safety of its use; and stagnant policies and management practices that prohibit hiring or employing of persons that “Puff the Magic Dragon.”  

Is it time for us to rethink our employment policies related to recreational marijuana?

Further, if you’ve been following the trending conventional wisdom on management practices and the current workforce you’ve been bombarded with exhortations to adapt your management style and practices to accommodate the attitudes and motivations of the emerging workforce. We’re told of the need to adapt to the motivations, habits and desires of Gen Z-ers and Millennials in order to remain competitive.  

Should part of this adaptation of current management practices include at least a discussion of current drug policy and testing for your community or company? That may be a good question to bring up now, before it becomes legal in your state.   

By the way, I’m not an advocate for the expanding legalization of pot, or further coddling this already overindulged new generation (oops, did I just type that out loud? A topic for another time); I am, however, asking the question — what do we do, now?  

Consider a community based in one of the states where recreational pot is already legal and whose policies prohibit employing anyone who uses cannabis. The recent increase in the minimum wage law has already placed a burden on hiring and retaining good quality staff, and because they are seeing an increased number of applicants who are being rejected because of marijuana use, they are forced to turn to a staffing agency to ensure residents are receiving the care and services they need.  

Here’s the punchline: the staffing agency is not screening for marijuana use.

I’m no attorney, HR professional or insurance broker (although I have played the parts on closed circuit television), but I posit that the reason the above scenario is preferable to the community modifying its own policies, hence allowing the hiring of someone who uses recreationally, is the insulation from legal action. Risk mitigation, right?

So assuming a negative event occurs — resident injury, for instance — and the aggrieved party claims it resulted from an agency staff member who was using marijuana recreationally (not an individual who comes in “high,” that is a much clearer and egregious situation, like coming to work drunk). However, if liability was being assigned because agency staff used recreational marijuana, is the community insulated — even if they knowingly hired from the agency and was aware that they did not screen out for marijuana use?  

Of course, it seems to me that the first hurdle for the claimant is linking the pot smoking on Saturday night to a lapse in performance occurring on Monday. Assuming that could be established, then we’re back to liability of the community. Is there any? Because this is the basis for the policy not to hire . . . isn’t it?  

If not then what is?

Consider the frog who dies slowly in the pot (no pun intended) of soon-to-be boiling water: “Is it getting warm in here or is it just me?”