Marijuana Legalization & the Workplace | 5 Tips for Employers

By: Alexandra Clauss

Vermont recently joined a growing number of states that have legalized the recreational use of marijuana. Vermont’s law, among other things, eliminates penalties for possession of one ounce or less of marijuana and two mature and four immature marijuana plants for a person who is 21 years of age or older. Marijuana remains illegal under federal law, meaning federal authorities retain the ability to enforce federal drug laws. As an employer, consider these five tips before the law takes effect on July 1, 2018.

(1) Review and Understand Protections for Employers

Legalization of the recreational use of marijuana does not mean employees can get high at work. Under the law, employers are not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace and can prohibit or regulate the use of marijuana on their premises. The law also specifically states it does not create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees. So, if an employee breaks out a pot brownie at lunch or tries to bring her marijuana plant for show and tell, be prepared to confidently respond, “NO WAY!”

(2) Draft or Update Drug-Related Policies

Under the law, employers are permitted to adopt a policy that prohibits marijuana use in the workplace. First, employers should confirm they have a drug-free workplace policy that also prohibits workplace intoxication. Next, employers should confirm the prohibitions in its policy applies to marijuana. Communicating such a policy to employees is a good way to notify or remind them of the company’s expectations.

(3) Be Prepared to Address Medical Marijuana Use

Vermont also has a law on the Therapeutic Use of Cannabis, but employers do not have to accommodate an employee’s request to use marijuana at work, even if it is being used to treat a disability. With that said, if an employer becomes aware that an employee is using marijuana for a medical purpose, the employer should engage in the “interactive process” with the employee to determine if he or she can perform essential job functions, with a reasonable accommodation. A company should consult with employment counsel prior to taking adverse action against an employee in these situations.

(4) Understand the Law on Workplace Drug Testing

Employers must continue to follow Vermont’s strict laws on workplace drug testing. For example, under Vermont law, employees can only be tested where there is probable cause. Certain employers may be subject to different drug testing laws or requirements under federal law. Before instituting drug testing of applicants or employees, an employer should consult with employment counsel. It is also important for employers to know they do not need to have a positive drug test in hand to take action against an employee for a reasonable suspicion of intoxication.

(5) Be Aware of Behavioral Changes that May Indicate Intoxication

Managers should be prepared to identify and document their suspicion that an employee may be under the influence at work. Managers should also take complaints or concerns about employee intoxication seriously.

In this greener landscape, employers should continue to stay up to date on developments in the law.

For more information on this topic contact Alexandra Clauss at aclauss@primmer.com or 802.864.0880.