The number of states with legalized recreational marijuana is growing.
Rhode Island and New York started allowing sales in late 2022. Connecticut followed in January. Maryland’s law will change to allow recreational use in July. That brings the total number of states that have legalized recreational use to 21, plus Washington, D.C.
The legal changes have put some contractors on edge: How can they keep their jobsites safe? How do they detect onsite use? How much of their employees’ substance use can they influence?
“There’s more confusion than clarity at this point,” said Carl Heinlein, senior safety consultant for American Contractors Insurance Group. Heinlein, who is based in Wexford, Pennsylvania, also said this has been an ongoing conversation with his clients, who are nationwide.
Marijuana laws vary by state
Unlike with alcohol, there is no immediate test of sobriety or impairment for cannabis. That leaves superintendents or safety officers trying to detect impairment solely by behavior, said Jonathan Ash, attorney and partner at Fox Rothschild.
“I would say to employers, and particularly contractors, be as current and up to date as to how you can detect impairment,” said Ash, who is based in Princeton, New Jersey.
But the whole issue is complicated by the fact that, at the federal level, marijuana use is still illegal, and the drug is a controlled substance. For contractors that work across different states, the laws don’t always align.
“Rules for where the corporate office is may not line up with the rules in Colorado,” said Heinlein, as an example.
Marijuana laws ranked as one of the most challenging multijurisdiction compliance issues in an Ogletree Deakins survey of in-house counsel and senior HR professionals.
Walking the tightrope
Contractors’ best bet, according to HR pros, is focusing on measuring on-the-job impairment, as anything beyond that can intrude into workers’ personal lives.
But the laws still differ state to state. For example, Ash said New Jersey once allowed employers to ban marijuana use for safety-sensitive positions, but newer laws no longer recognize that policy as valid.
In June, D.C.'s city council unanimously passed a ban on firing workers for failed cannabis tests starting this summer. California Gov. Gavin Newsom signed a similar bill in September, protecting off-the-clock cannabis users from termination, effective January 2024.
It is well within the rights of employers in most states to have a drug-free workplace policy, meaning workers cannot possess or use drugs at work, Ash said, adding he’s had times where clients terminate an employee for having pot in a company vehicle.
And the concerns are real: A 2021 National Safety Council survey found that one-third of employees had seen workplace cannabis use.
Bringing in stakeholders
Heinlein said the key to maintaining a safe workplace is communicating via teams contractors already know, while protecting worker privacy.
“My advice is to continue the communication with the right folks. Legal team, insurance folks, your employer groups, the trade associations,” Heinlein said.
Training managers or superintendents is also critical, Catharine Morisset, partner in the Seattle office of Fisher Phillips, told HR Dive. Contractors — and indeed all employers — may rely on managers to determine when there is a reasonable suspicion that an employee is under the influence while working.
Still, Morisset advised exercising caution when deciding who to train managers. Employers should consider developing a checklist or other form of documentation for the behaviors managers should monitor, she said.
“Make sure that the person conducting the training has been trained themselves on how to do reasonable suspicion education,” Morriset said. “Not every employment lawyer is even the right person for that.”
Updating and reviewing policies annually, Morisset said, will help adapt an up-to-date approach based on continually changing regulations and the jurisdictions in which employers operate.
Heinlein added that communicating with workers face-to-face is still a smart route. Mentioning legal changes during toolbox talks can help emphasize that showing up to work clearheaded is part of how you make sure everyone gets home safe.
“The old adage for us is, anything you do in construction, you could get hurt,” Heinlein said.