New Hires Who Smoke Weed: Navigating a Hazy Situation

You’ve landed the perfect person for your organization’s leadership role. It’s pretty much a done deal… until it isn’t. Your star candidate tested positive for weed, and you’re left deciding what to do.

The legalization of recreational and medical marijuana in various parts of the world has sparked an important debate about how employers should handle new hires who use cannabis. This issue presents a unique challenge for companies and HR departments as they strive to balance employee rights, safety, and the evolving legal landscape.

The Changing Legal Landscape

To understand the challenges faced by employers in dealing with new hires who smoke weed, it’s crucial to first recognize the changing legal landscape. In over 20 states, marijuana is no longer considered a controlled substance, with more jurisdictions decriminalizing or legalizing its use. This shift has led to greater acceptance and use of cannabis among adults.

However, despite these legal changes, cannabis remains illegal at the federal level in the United States and in several other countries. This dual legal framework poses significant challenges for employers, especially those with a zero-tolerance policy for drug use.

Things to consider:

One of the key challenges employers face is striking a balance between respecting the rights of employees, state vs. federal regulations and ensuring a safe and productive work environment.

Employee Privacy: It’s essential for employers to respect their employees’ privacy and individual rights. In many places, what employees do on their own time is their business, provided it doesn’t interfere with their job performance. Employers should establish clear policies that specify expectations while off the clock.

Workplace Safety: Employers have a responsibility to ensure the safety of their workforce. For safety-sensitive positions, such as those involving heavy machinery or public safety, maintaining a zero-tolerance policy regarding drug use, including marijuana, may be necessary. This brings up important issues, such as whether workers’ compensation can be denied for an injured worker testing positive for marijuana use; and whether workers’ compensation can reimburse injured workers for medical marijuana.

State and Federal Regulations: Employers need to be aware of both state and federal laws regarding marijuana use. Some states have legalized cannabis. California took it a step further by passing legislation prohibiting employers from discriminating against “a person in hiring, termination, or any term or condition of employment” based on “the person’s use of cannabis off the job and away from the workplace.” This legislation will go into effect on January 1, 2024. However, federal regulations may still classify it as a controlled substance. Employers should align their policies with these legal requirements.

What can employers do?

In order to navigate the complexities of hiring individuals who use cannabis, employers should consider the following strategies:

Clear Drug Policies: Employers should establish comprehensive drug and alcohol policies that outline expectations for employees regarding substance use, both on and off the job. These policies should be communicated to all employees and new hires.

Educate and Train: Offer education and training to supervisors and HR personnel to ensure they can effectively handle situations related to employee drug use. This includes recognizing signs of impairment and following established policies.

Individualized Assessments: Instead of imposing blanket drug testing policies, consider individualized assessments of job roles and the potential risks associated with drug use. This approach allows for a more nuanced evaluation of each situation.

Focus on Job Performance: Employers should prioritize whether a candidate is a good fit for the role and organization and evaluating current employee performance based on job-related factors, such as attendance, productivity, and safety records, rather than solely relying on drug testing.