With 17% of Americans claiming to use cannabis, whether the substance belongs in the workplace has become a controversial topic among employees, HR professionals, and even state legislatures. As new laws are introduced and old ones change rapidly, it has also become confusing.
For HR professionals trying to navigate this landscape, understanding current federal ,state, and local laws is vital. It’s also important to know how the laws affect hiring, safety, and investigations.
Discover what you need to know about which states allow cannabis use, how to create clear and compliant policies, and what you can do to keep employees safe and productive.
Cannabis Laws Throughout the United States
Selling or using cannabis, even for medicinal purposes, is fully illegal in Idaho, Kansas, South Carolina, and Wyoming. The following states have approved the use of cannabis for medicinal use only:
- Alabama
- Arkansas
- Florida
- Louisiana
- Mississippi
- New Hampshire
- North Dakota
- Oklahoma
- Pennsylvania
- South Dakota
- Utah
- West Virginia
Georgia, Indiana, Iowa, Kentucky, Tennessee, Texas, and Wisconsin have approved CBD oil for medicinal use, and North Carolina has similarly approved hemp extract. The following states have decriminalized cannabis for personal use in smaller amounts:
- Hawaii: Possession of up to three grams
- Nebraska: Possession of one ounce or less (first offense only)
- North Carolina: Possession of 0.5 ounces or less
- North Dakota: Possession of less than 0.5 ounces for adults ages 21+
- Louisiana: Possession of up to 0.5 ounces
- Mississippi: Possession of up to 1.05 ounces
- New Hampshire: Possession of up to 0.75 ounces
In all other states and Washington D.C., cannabis use is legal for both recreational and medicinal use.
How Cannabis Laws Impact Background Checks
At the federal level, cannabis is a Schedule 1 controlled substance. This makes it illegal to consume for medical and personal use.
Federal legislation, such as the Drug-Free Workplace Act of 1988, requires federal employers, those with at least $100,000 in federal contracts, and federal grant recipients, to provide a drug-free workplace. In many cases, this involves developing a drug testing policy for employees and candidates.
Clearly, there are a number of state laws in direct opposition to federal law. Some of these states even have anti-discrimination provisions in place to protect employees from being rejected from a job because of past medicinal cannabis use, including:
- Arizona
- Arkansas
- Delaware
- Illinois
- Maine
- Maryland
- Minnesota
- Missouri
- New Mexico
- Oklahoma
- Pennsylvania
- South Dakota
- Virginia
- Washington D.C.
- West Virginia
In addition to medicinal use protections, the following states also protect employees in the case of off-duty recreational use:
- California
- Connecticut
- Montana
- Nevada
- New Jersey
- New York
- Rhode Island
- Washington
Massachusetts, New Hampshire, and Vermont employees are protected through court rulings and not legislation. As more states enact laws to seal or expunge convictions, you may not be able to access this type of information in a background check.
Other states, like California, have made it illegal for employers to even ask about these criminal convictions until a conditional offer has been made. In some cases, you may not be able to ask about off-duty cannabis use at all or take adverse actions based on off-duty use.
Cannabis and Workplace Safety
Studies have shown that cannabis can negatively impact workplace safety by impairing judgment, fine motor skills, attention, memory, and more. Some studies have shown a link between cannabis use and workplace injuries.
However, some states have limited drug testing or limited what employers can do with the results (such as taking adverse actions against the employee). As always, HR professionals should know the laws in their individual states and craft clear policies that align with those laws.
For example, Indiana state law allows medical cannabis use at work but prohibits employees from performing any task while under its influence.
Employers should also understand the requirements of their workers’ compensation carrier. For example, in some cases, claims can be denied if a post-incident drug test reveals a link between the injury and cannabis usage.
Conducting Cannabis-Related HR Investigations
Employers must be extra careful about how they navigate cannabis-related investigations. Here are some tips to help you stay compliant:
- Get clarity on state and local laws surrounding medical cannabis and drug testing policies
- Craft and distribute clear and compliant policies surrounding cannabis use
- Document behavioral observations (e.g., slurred speech or safety violations)
- Meet with the employee to discuss your suspicions, ensuring you remain objective and avoid questions you’re not allowed to ask about recreational use
- Send the employee for drug testing if the state allows it
- Take action based on the results, balancing federal requirements and state and local laws
Following these guidelines can help you conduct an investigation that is both thorough and compliant.
Cannabis in the Workplace: An Ever-Evolving Landscape
As state legislatures continue to debate cannabis laws, HR professionals must stay abreast of the current laws and general sentiment in their state and be aware of what may be coming down the pipeline.
Because cannabis is a sensitive topic that can affect overall morale, productivity, safety, and other aspects of the workplace, handling this topic with clarity and care will certainly yield the best results.
Interested in seeing how VirgilHR can help you navigate workplace cannabis policies and ensure compliance? Schedule a demo with us today to discover our comprehensive solutions tailored for HR professionals.
