With the ongoing changes in and divergence of many state and federal laws pertaining to marijuana legalization, medical marijuana usage, cannabis-derived edible products, and most recently those hemp-derived products including Delta-8 THC items, employers are finding a greater challenge in monitoring employee behavior relating to the use of those products. While the legality of various cannabis- and hemp-derived products continues to be in flux from jurisdiction to jurisdiction, a sound drug and alcohol employment policy which focuses on the safety of employees and the public can serve as a reliable compass for employers.
Akin to alcohol use, in those states where marijuana is legalized, many employers have now adopted workplace policies which allow for the off-work-hours use of cannabis and hemp-based products by their employees. Many have stopped random testing for Delta-9 tetrahydrocannabinol (THC), the active ingredient in marijuana. Additionally, in those states where recreational marijuana use remains illegal, but the use of hemp-based drug products containing Delta-8 THC is permitted, employers are scrambling to catch up with current federal law where state legislatures have not yet acted. Employers are adding those substances to a growing list of intoxicants which they may allow their employees to use when not at work, but cannot be allowed to use or be under the influence of while on the job.
Despite these changes, it remains sound policy for an employer to set out the requirement for a safe and sober drug-free workplace. Prohibiting the on-site use of alcohol, cannabis, and Delta-8 products remains the most defensible drug-and-alcohol policy. Letting employees know that the negative effects of intoxicants on them and their work performance will not be tolerated and the safe conduct of duties by all employees establishes basic employment expectations. Further, doing so may limit some legal liability and helps protect property, people and the public in general from employees being intoxicated on the job. It also provides a trigger point for an employer’s investigation of employee behavior and helps get that employee the needed assistance. In terms of employment brand, besides preventing injury and limiting property damage, it also gives companies an opportunity to improve employee morale, increase product quality and service outputs, and ultimately be a good corporate citizen.
Where appropriate, limitations on the off-hours-use of intoxicants preceding work may still be legally required through other regulations, or necessary in an employee handbook. It is important to confer with legal counsel when adding or revising those sections to a drug and alcohol policy. Further, examining recently legalized intoxicants, such as Delta-8 THC edibles or recreational marijuana and addressing policy variation across offices and facilities in multiple states will require keen legal review to determine the currently-applicable laws in those jurisdictions. While the safety aspect of maintaining a drug-and-alcohol-free workplace is the generally accepted reason for such a policy, it is important for employers to understand application of such policies in relation to a prescription for medical marijuana, legalized recreational marijuana, and legalized Delta-8 product usage, and to anticipate employment claims which could result on a state-by-state basis.
While the legal landscape shifts in relation to society’s changing view on marijuana use and the use of hemp-based intoxicants such as Delta-8 products, employers can find security in a well-written drug-and-alcohol policy. Policy modifications can be made to address those special exceptions and state-to-state variances for jurisdictions at the forefront of cannabis-related regulations.
Simonson is an attorney with the Fryberger Law Firm in Duluth, Minn., where he specializes in the areas of employment, corporate and contract law. To explore implementation or updates to employment policies in your business relating to employee usage of marijuana, Delta-8 products, or other matters, contact him at 218-725-6865 or via email at nsimonson@fryberger.com
