Commercial Cannabis Meets Workplace Drug Testing: What happens next?

Solutions Arts works with a variety of clients across industries including the legal adult-use and medicinal cannabis industry. People outside the cannabis industry consistently ask the same question: what about workplace drug testing?

It seems inevitable that current state--and eventually, federal--laws will shift and change. Meanwhile, much of the law and policy conflicts are being waged in various states with different case law applying in different jurisdictions. Some states are reaching similar conclusions while others differ.

Further Resources

• June D. Bell's February 16, 2018, article for SHRM highlights some of the challenges that exist for employees and businesses as states across the nation legalize cannabis. Check out her article, Navigate Workers’ Medical and Recreational Use of Marijuana.
• Eddie Miller and Boris Tsibelman's November 6, 2016 article, 5 Tips to Help Employers Deal With Legal Marijuana Use, outline tips that help companies create legal, fair, and compassionate policy. 
• Joseph A. McNelis III's November 14, 2017 article, Considerations for Employers as Medical Marijuana Approaches, digs deeper. He notes the states (Arkansas, California, Colorado, Florida, Massachusetts, Montana, Nevada, and North Dakota) that passed ballot measures in the 2016 election cycle that either legalize or expand current existing cannabis programs.  He dedicates much of the article to reviewing Pennsylvania's medical marijuana law, which is among the most restrictive across the country. 
• A new bill introduced into the California Assembly may not only effect California workplaces, but could serve as a template for other states. Assemblymembers Rob Bonta (D-Oakland) and Bill Quirk (D-Hayward) have co-authored Assembly Bill 2069 to “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.” Learn more by reading David Downs February 14, 2018 article, Workplace discrimination against California medical cannabis patients may end. 

Ask Different Questions
It's time to shift from "what about drug testing," to the more relevant questions:

1. When were company policies last reviewed and updated?
2. What do our existing policies state with regard to drug and alcohol use and testing? What positions, if any require a separate, zero-tolerance policy?
3. What are the current state laws? How might legal guidance benefit our policy updates and decisions?
4. How might we better inform and educate ourselves? What steps can we take to implement legal, fair, compliant, and compassionate policies that support business goals, customers, and employees?

Schedule a Working Session
Off-site or full-day meetings are often unpopular and take key contributors and decision-makers out of the field and limit their availability to their teams. Not every company change needs to result in an off-site or full-day meeting. However, some issues do require key leaders, decision-makers, and functional area support to protect uninterrupted time to dive deep into an issue and emerge with an action plan. This is one of those situations. 

What might a working session look like? ​

• Set goals for the working session.
  • What do you want to walk away with?
  • What does success look like?
  • What do you need at the end of the session?
• Distribute existing policy information and require attendees to read it ahead of the meeting.
• Retain external support to develop and facilitate the program.
  • Engage a reputable external strategic partner with experience in strategic alignment, human resources and compliance, and learning and development.
  • Include legal representation to vet discussions and outcomes.
• Extend invitation to all functional areas within the organization. Otherwise, you run the risk of overlooking key segments of the business.
• Create messaging about the working session that sets tone, expectations, and goals including ownership of the final draft changes. This helps attendees come prepared and develops champions for roll-out and adoption. 

If appropriate, seize the opportunity to make this particular working session fun. Policy updates, although important, are historically boring snooze-fests. If the company culture is progressive, fun, and open, talk with your external partner about ways to infuse humor and education into the working session. For example, kick off the working session with a game that uncovers myths and stereotypes about cannabis use. Images or short clips from, Reefer Madness, not only remind attendees how far we've come, but they're also good for a laugh. Follow up the game with images of and stories about cannabis use in the mainstream (e.g., treatment protocols and successes with veterans, childhood epilepsy, adults with MS, and cannabis use in geriatric medicine) to provide a broad snapshot of changing times and when and how attendees might need tools and policies to discuss cannabis use with employees. 

As some form of legal cannabis policy sweeps the nation, it makes sense for companies to proactively review and update policies now rather than waiting to pay court and attorney fees later.