LAS VEGAS — Ten years ago, it seemed unlikely that more than a handful of states would legalize marijuana in any fashion, Jim Reidy, an attorney at Sheehan Phinney, told attendees at the Society for Human Resource Management Annual Conference. Now, more than 33 states have legalized marijuana in some form, either medicinally or recreationally. On June 25, Illinois became the 11th state to legalize recreational marijuana.
HR executives who have been in the industry for decades have "seen incredible change in workplace laws ... but especially in this area," Reidy said.
That rapid change rate brought uncertainties for HR managers across the country, including questions about workplace drug policies. The evolution of marijuana laws and court precedent has forced employers to reconsider their drug and alcohol policies and testing procedures — including concerns over retention sparked by regular drug testing. Reidy answered some lingering questions regarding medical marijuana and the recently legalized status of hemp and CBD oil (made legal by the 2018 Farm Bill).
Does the Americans with Disabilities (ADA) act permit medical marijuana use as a reasonable accommodation?
No, as it is a federal law. Even in states that have legalized medical marijuana, the ADA still does not apply. But keep an eye on state laws, Reidy said, as not all state laws explicitly state that federally controlled substances are not protected. Federal enforcement has also recently backed off in states that have legalized it, Reidy said.
Is employees' off-time use of medical marijuana protected?
While traditionally the courts said no, the courts are "starting to see a sea change in this regard," Reidy said. Thirteen states already prohibit discrimination on the basis of someone holding a medical marijuana card, and Reidy said employers should "expect carve outs" regarding medical marijuana holders having marijuana detectable in their system while at work.
Positions that are safety-sensitive allow a zero-tolerance policy. And no state allows a worker with a medical marijuana card to show up to work under the influence or use the drug at work, he noted.
What are the uses of CBD oil?
According to medical professionals, CBD oil is derived from cannabis but is not psychoactive like THC, the aspect of marijuana that gives it its mind-altering effects. It's increasingly popular for pain relief and has also been known to treat anxiety and depression.
Does CBD oil use show up in a drug test?
Yes, Reidy said. The problem with CBD oil is that it is generally not regulated, he added, so while the standard to be detected in a drug test is more than 5% THC, some CBD oils hit that mark due to differences in production.
Should an employee disclose if they are using CBD?
In an informal poll in the room, no attendees had CBD carved out as an exception for drug testing — though some states do have protections, Reidy said. CBD oil is a particularly confusing area of the law; in Georgia, for example, CBD oil isn't explicitly banned or allowed by the law. Instead, it fell into a legal gray area after the federal government took hemp off the controlled substances list.
Additionally, it isn't federally legal to add CBD oil to food or drink, but as reported in the Washington Post, a slew of CBD-infused products have cropped up, which may prompt the U.S. Food and Drug Administration to create a policy regarding it.
In other words: Expect confusion on this point to continue, and be ready to be flexible.