As the Biden administration proposes rescheduling marijuana from a Schedule I to a Schedule III controlled substance, small businesses may need to revisit their policies on cannabis use among employees. This change could prompt more employers to allow off-duty marijuana use, though companies in safety-sensitive industries may continue to enforce zero-tolerance policies.

Current Landscape of Cannabis Testing

Many businesses have already stopped testing for marijuana, but sectors like manufacturing, healthcare, transportation, and warehousing—where safety is critical—often maintain strict drug testing and policies against off-duty use. Additionally, some jurisdictions restrict drug testing for marijuana, adding further complexity for employers.

According to Nancy Delogu, an attorney with Littler in Washington, D.C., rescheduling marijuana could lead to broader access to THC-based medications. This might mean that employees could legally use marijuana products to treat medical conditions, though workplace use and intoxication would still be prohibited.

Impact of Rescheduling Marijuana

If marijuana is rescheduled, recreational use would still remain illegal at the federal level without a prescription, and misuse would be treated similarly to opioids. Employers can discipline employees who use marijuana without a valid prescription, just as they would with any other substance misuse.  The issue becomes muddy when the employee does have a valid legal prescription.

Policy Considerations for Small Businesses

Small businesses should adjust their substance use policies in light of evolving state marijuana laws. If an employer maintains a zero-tolerance policy, clarity is crucial. Employees need to understand that while off-duty use may be permitted under some state laws, use during work hours remains strictly prohibited.

In states like Louisiana where marijuana is legal with a prescription, employers can limit an employee's use during work by implementing clear policies and practices that balance compliance with state law and workplace safety. Here are steps a business should implement to effectively manage marijuana use at work:

1. Develop a Clear Drug and Alcohol Policy

• Zero Tolerance for On-the-Job Use: Clearly state that the use, possession, or being under the influence of marijuana during work hours or on company property is prohibited, even if the employee has a valid prescription.
• Define “Under the Influence”: Specify what constitutes being "under the influence" at work. This can include observable behaviors, impairment tests, or a specific threshold for THC levels if your state laws allow.

2. Communicate Expectations to Employees

• Employee Handbook and Training: Include your drug policy in the employee handbook and conduct training sessions to ensure all employees understand the rules. Emphasize that while off-duty, prescribed use may be allowed, it is strictly prohibited during work hours.
• Acknowledge Medical Use: Acknowledge that while some employees may have a prescription, this does not permit use during work hours or the presence of cannabis-related impairment on the job.

3. Fitness for Duty Evaluations

• Safety Comes First: Implement fitness-for-duty evaluations for employees working in safety-sensitive roles. If an employee shows signs of impairment, they can be removed from their duties until they are deemed fit to return.
• Assess Impairment: Train supervisors to recognize signs of impairment and use objective criteria, such as performance issues, behavior, or specific incidents, to determine if an evaluation is needed.

4. Reasonable Suspicion Testing

• Policy for Testing: If allowed by state law, establish a reasonable suspicion testing policy. This involves testing employees if they show observable signs of being under the influence while at work.
• Documentation: Require supervisors to document their observations that lead to testing, ensuring that the decision is based on behavior and performance, not on assumptions or stereotypes.

5. Accommodate Medical Use, Not Impairment

• Offer Alternatives: If the employee needs marijuana for medical reasons, discuss alternatives that do not involve usage during work hours, such as taking medication outside of work hours.
• Engage in an Interactive Process: Engage in an interactive process to accommodate medical conditions without compromising safety or performance. This can include modifying work schedules or adjusting duties, but it does not have to include allowing use during work.

6. Consistently Enforce Policies

• Uniform Enforcement: Enforce your drug and alcohol policies consistently across all employees to avoid claims of discrimination. Ensure that every violation is handled according to the established policy.
• Progressive Discipline: Outline a progressive discipline process for violations, which may include warnings, suspension, or termination, depending on the severity and recurrence of the issue.

7. Employee Assistance Programs (EAPs)

• Support Resources: Offer Employee Assistance Programs that provide support for substance use issues, including counseling and resources for employees who need help managing their prescriptions responsibly.

8. Legal Compliance and Review

• Regularly Review Policies: Regularly review and update your drug and alcohol policy to ensure compliance with the latest federal, state, and local laws regarding marijuana use.
• Consult Legal Counsel: Work with legal counsel to ensure that your policies are compliant with employment laws, anti-discrimination regulations, and workplace safety standards.

By having these measures in place, employers can manage marijuana use responsibly while ensuring a safe and productive work environment.  If your Handbook and Policies have not been revisited for a while - contact us  today and let BLG update your Handbook.