The Impact of Changing Marijuana Laws on HR

Lisa Nagele-Piazza

As America's attitudes towards marijuana legalization shift and evolve, so, too, do the jobs of Human Resource professionals. In this ever-changing environment, what happens to workplace drug policies? And how can we all keep up? One way to keep up is to follow Lisa Nagele-Piazza, Senior Legal Editor at the Society for Human Resource Management (SHRM), and she is our guest for this week's episode of ProjectHR. In this episode, we'll discuss:

  • Whether drug testing is worth doing anymore;
  • Who is responsible for keeping up with the changing laws;
  • What happens to HR when the law changes; and
  • Notable legal challenges you should know about.




“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.” 

If you prefer to read along while you listen, we've done all the hard work for you! We listened back to this episode and took notes below, and access is free! 

Is Drug Testing Even Worth Doing Anymore?

  • It depends on state law and the needs of the business, as well as other factors:
    • Are there safety-sensitive positions? 
    • What is the culture like?
    • Will people be turned off from applying for jobs at the company if they drug test?
    • Even if companies choose to drug test, are you testing everyone, or just for the safety-sensitive positions?
  • Anecdotally, many employers have stopped testing.
  • Of those who do test, in 2019, nearly 98% of all non-regulated drug tests that Quest Diagnostics performed still included marijuana in the five-test drugs panel.
  • Most common time to drug test is during Pre-Employment.
  • Random testing is often employed in highly safety-sensitive positions.
  • Post-Accident testing is also common.
  • Drug testing can also occur when there’s Reasonable Suspicion of Impairment.
    • When an employee exhibits observable behaviors that can lead a manager to think that the employee is under the influence. These behaviors may include:
      • Strong odor (although this is changing now, considering the current use of edibles and vape pens);
      • Movements (staggering/twitching);
      • Watery, red eyes;
      • Confused facial expressions;
      • Slurred speech.
  • Drug testing can be very expensive for companies, and that cost may play into a company’s decision whether or not to test.
    • Part of that cost involves the inclusion of a medical review process in their drug testing procedures. This is why companies outsource to drug screening companies, so that they will be on hand to analyze the tests, assess accidental use or intake (second-hand smoke/poppy seed bagels claims, etc.) and ask follow-up questions.
  • What does it mean to test positive in a state where medical marijuana is permitted?
    • On-the-job intoxication never has to be tolerated - however, there may be certain job protections based on the employee’s status as a card-holder.
    • Remember: Marijuana use is still illegal under federal law;
    • A lot of state laws have taken different approaches:
      • Under California law, for example, there’s no job protection for medical use of marijuana - please note there has been new movement on this since the recording of this episode; 
      • Nevada just passed a law saying that employers cannot take a pre-employment positive marijuana test into consideration in the hiring process, and 
      • New York City has a similar law, saying that New York employers cannot test, pre-employment, for marijuana);
      • Medical marijuana card-holders generally have an underlying disability that they are trying to treat, so they are covered under the state disability law for their use.


Get all the notes, links, tips, tricks and most important content from this episode - for free!

By signing up you agree to our terms

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

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!


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) 


Subscribe & Review The ProjectHR Podcast!

Thanks for tuning into this week’s episode of ProjectHR. If the information in our weekly conversations and interviews have helped you in your business journey, please head over to Apple Podcasts, Google Podcasts, Stitcher, TuneIn, Spotify or however you get your podcasts and subscribe to the show. We'd also love it if you left us a five-star review! Your reviews and feedback will not only help us continue to deliver great, helpful content, but it will also help us reach even more amazing professionals just like you!

Print Friendly, PDF & Email