Cannabis Employment Compliance: How to Navigate Complex State and Federal Regulations

When it comes to cannabis employment, business owners find themselves walking a tightrope between state and federal laws that often conflict, leading to confusion, uncertainty, and potential legal pitfalls. This challenge is especially critical when situations like the one described above—an employee being arrested and unable to work—occur in the ever-growing cannabis industry. With conflicting regulations in place, employers must be prepared to navigate the maze of legal complexities to ensure compliance and maintain a smooth operation.

The Legal Quagmire: State vs. Federal Law

One of the biggest hurdles in cannabis employment compliance is the tension between state and federal laws. While numerous states have passed legislation that legalises the use of cannabis for medical or recreational purposes, cannabis remains illegal at the federal level. This creates a convoluted legal landscape for employers who operate in the cannabis industry or hire employees who are cannabis users.

Under federal law, cannabis is classified as a Schedule I controlled substance under the Controlled Substances Act. This means that businesses operating in cannabis-related sectors are technically breaking federal law, even if they are complying with state-level regulations.

This discrepancy affects everything from hiring practices to drug testing policies, and it can put employers at risk of violating federal law or facing discrimination claims under state employment laws. For example, if an employee in a state where cannabis is legal is caught using cannabis outside of work hours, an employer might be stuck between protecting their workforce’s privacy and adhering to federal regulations that still classify cannabis as an illicit drug.

• Some states have passed “employee protection” laws that prevent employers from firing employees for off-duty cannabis use.

• Other states allow employers to terminate employees who fail drug tests or engage in cannabis use while on the clock.

This disjointed framework leaves employers constantly adjusting to new laws as they emerge.

Navigating Cannabis Employment Policies

So, what can employers do to stay compliant in such a tricky legal environment? Well, crafting clear, consistent, and comprehensive cannabis employment policies is crucial. Employers must establish policies that address everything from drug testing to how to handle employees caught in legal conflicts. Here are some steps to follow:

1. Understand Your State’s Laws: Before taking any action, ensure that you have a solid understanding of the cannabis laws in your state. Regulations surrounding cannabis can vary dramatically from one state to another. You need to know what is legal and illegal in your state, and tailor your policies accordingly.

2. Drug Testing: Even in states where cannabis is legal, employers may still choose to conduct drug tests. If you do decide to test, be transparent about the type of tests you’re using and what substances you’re testing for. Consider the implications of a positive test result—will it automatically lead to termination, or will you allow for more flexibility?

3. Off-Duty Conduct: State laws can differ in terms of how much influence an employer has over an employee’s off-duty behaviour. Some states restrict how employers can treat employees who use cannabis during their personal time. Make sure your policy clearly specifies whether off-duty cannabis use could affect employment.

4. Workplace Safety: If your business operates in a high-risk environment where safety is a priority, you may be required to maintain stricter policies regarding cannabis use. For instance, employees working with heavy machinery or in healthcare settings may face additional scrutiny when it comes to substance use, regardless of the state’s stance on cannabis legality.

5. Training for Managers: Managers and HR staff should be well-versed in the laws surrounding cannabis employment. They need to know how to handle situations where employees test positive for cannabis, as well as how to respond to allegations or accusations of cannabis use on the job.

It’s crucial that businesses build flexibility into their cannabis policies. Employers must balance state regulations with the reality of their workforce’s diverse needs, ensuring compliance while remaining fair and transparent.

Addressing Discrimination Claims and Employees’ Rights

Given that cannabis is still illegal federally, employers may inadvertently find themselves in situations where they must defend their actions in court. Cannabis-related discrimination claims are becoming more prevalent as employees assert their rights in states where cannabis has been legalised. A few of the key considerations for employers include:

• Disability Protections: Some cannabis users are medicinal users who rely on cannabis to manage a medical condition. In certain states, employees may claim protection under the Americans with Disabilities Act (ADA), arguing that they shouldn’t be penalised for using cannabis as part of their treatment plan.

• Employee Privacy: Employers must be careful when handling situations involving cannabis use. If employees are found using cannabis off the clock, it may infringe upon their privacy rights. Balancing workplace policies and personal freedoms is a fine line that must be tread with caution.

• Federal Employees: If you’re a business that receives federal funding or works on federal contracts, cannabis use may still disqualify employees, even in states where cannabis is legal. This adds another layer of complexity, as employers in this situation need to ensure they comply with both state and federal policies, which can often be at odds.

Case Studies and Real-World Examples

Let’s take a closer look at some examples that highlight the challenges faced by employers in the cannabis industry:

• Case Study 1: The Disgruntled Employee: In one instance, a cannabis dispensary employee in California tested positive for cannabis in a random drug test. Despite California’s legalisation of cannabis for recreational use, the company had a zero-tolerance drug policy that led to immediate dismissal. The employee sued for wrongful termination, claiming the policy violated state laws protecting cannabis use. The case sparked widespread debate and highlighted the need for more clear-cut workplace policies.

• Case Study 2: Workplace Injury and Medical Cannabis: Another case involved a worker in Colorado who injured their back at work and was prescribed medical cannabis to manage the pain. The company, which operated in the transportation sector, refused to accommodate the worker’s treatment plan, citing safety concerns and federal regulations. The employee sued for discrimination under the state’s medical marijuana law, leading to a landmark decision that required employers to balance workplace safety with the rights of medical marijuana users.

In both of these cases, the legal complexities surrounding cannabis use created tension between state law, federal law, and the rights of employees. Employers must stay abreast of these shifting regulations to mitigate risks and avoid costly legal battles.