Who Is Responsible For Keeping Up With These Laws?

• HR, Legal, and Senior Leadership should all be involved in keeping up with the law, collaboratively.
• Supervisors can also provide insight into the realities for their departments, and they need to know how to spot impairment, as well as be trained in what to do if they perceive one.
• The issue is more complicated for companies located in multiple states, which can also impact a company’s decision to test.

When The Law Changes

• A big part of HR’s role is communicating the company’s position on the changing law to their employees - setting expectations.
• Once again -- regardless of state laws, on-the-job intoxication never has to be tolerated. Employers should explore the use of reasonable accommodation can be made to a medical marijuana user. This could be something as simple as a shift change, or a leave of absence that will allow an employee to use marijuana on their own time, off the clock.
• What if the employee refuses the company’s reasonable accommodation? The employer does not have to accept the accommodation that the employee may offer or counteroffer. What matters is there’s a good-faith effort to find a workable accommodation for both. 

CBD Products

• CBD is one of many cannabinoids produced by the cannabis family. Unlike THC, which is the primary psychoactive element in marijuana, CBD is non-psychoactive, meaning it doesn't cause the "high" associated with marijuana.
• CBD products are often touted as having medicinal value, and are actually legal in most states.
• CBS products are also not highly regulated, so may potentially cause issues during testing.
• As far as CBD and corporate policies go, it depends what employers wish to test for, and they may want to focus on reasonable suspicion and observable behaviors rather than testing.

Notable Legal Challenges

• Court found in favor of the employer: Coats v. Dish Network (Colorado Supreme Court)
• Court found in favor of the employee: Barbuto v. Advantage Sales and Marketing, LLC (Massachusetts High Court)

Future Trends

• Ms. Nagele-Piazza believes that we are going to continue to see more states legalize marijuana use (both medicinal and recreational use).
• She also anticipates that more states and cities are going to follow the direction of Nevada and New York City and start putting limitations on the use of a failed marijuana test for pre-employment testing.

Advice For HR

• “The most important thing is to think before you react -- don’t make an off-the-cuff decision. If someone fails a drug test, take a look at the law, take a look at the company’s policies, make sure you’re applying them consistently and also know when it’s time to contact your lawyer.”
• It can get very challenging to comply, and consistency is important. 
• Drug testing policies must be constantly reviewed and updated for changes in the law and for changes in corporate culture. The policy has to be updated regularly!

Links

• Pew Poll quoted in the introduction
• Ms. Nagele-Piazza’s drug testing series for SHRM; plus a recent article on changing marijuana laws
• Ms. Nagele-Piazza’s author page

Lisa Nagele-Piazza: Backstory

• B.S. in Business Administration from University of Colorado-Colorado Springs
• M.A. in Education and Organizational Leadership from Argosy University
• Master of Laws (LL.M.) in Business and Economic Law from Georgetown University Law Center
• Ms. Nagele-Piazza is currently the Senior Legal Editor at Society for Human Resource Management (SHRM) 

Contact

• Lisa Nagele-Piazza: Lisa.Nagele-Piazza@shrm.org
• SHRM website