Recreational cannabis can cause legal headaches for employers

By Adam R. Young, Jennifer Mora

Apr. 7, 2020

In the heyday of the two-martini lunch, employers regularly tolerated alcohol in the workplace or employees presumably impaired by alcohol returning to work. Over the succeeding decades, employers began to concentrate on the business and legal liabilities imposed by drug and alcohol use and impairment in the workplace — including increased absenteeism, mistakes, sexual harassment, workplace violence, accidents and injuries.

Employers also discovered that their insurance companies claimed exemptions for certain claims if the employee creating issues had been consuming alcohol at work. As a result, employers largely began to adopt policies that prohibited employees from using or being under the influence of alcohol (and drugs) while at work. Most employers have since prohibited alcohol and drugs entirely or restricted alcohol to the occasional Christmas party or social function.recreational cannabis, medical cannabis, legal considerations

While there has not been a mainstream resurgence of alcohol consumption in the workplace, there has been a distinct trend in some collaborative and creative workplaces — including co-working environments — to expand access to alcohol in the workplace through kegs or onsite bars.

Also read: Managing people in the growing cannabis industry

Employers who elect to allow drinking at work are advised to implement policies regarding such use and consider a variety of safety issues that could result. These considerations include how to handle intoxicated employees, whether to provide transportation for employees to drive home, tracking and limiting consumption, defining the times during the day when drinking is allowed and handling complaints lodged against employees. 

With the legalization of recreational marijuana in many states, some employers with permissive alcohol regimens are deciding whether they will treat marijuana as they treat alcohol and how they will address workplace use and impairment.

Marijuana is unlawful under federal law and employers have the right to prohibit its possession, use and impairment by employees in the workplace (or while on company time). But some employers are considering relaxing their prohibitions on cannabis or even allowing cannabis in the workplace. They hope to attract workers who may have a positive attitude toward cannabis.

Employers must consider the potential liabilities if an employee uses cannabis at work and if those liabilities are less than, equal to or greater than the risk associated with alcohol use. Can an employer even allow this if it wants to? 

Also read: CBD — What employers need to know

To what extent weed at work starts to become as mainstream as alcohol at work remains to be seen, but there are several considerations that employers should ponder.

  • One way in which alcohol and cannabis are the same is in the context of occupational safety hazards. Cannabis is a psychoactive drug that impairs decision-making, motor skills and response time. According to highly-respected safety professionals, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in positions that are safety-sensitive, where an impairment could put the employee, coworkers, clients or third parties at a risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero tolerance policy for cannabis use in safety-sensitive positions.
  • Employers subject to the federal Drug-Free Workplace Act cannot allow employees to use any controlled substance in the workplace lest they risk losing their government contract. Although more states are enacting recreational and medical cannabis laws, cannabis still is illegal as a matter of federal law. Thus, employers with government contracts should not consider permitting the use of cannabis or controlled substances at work.
  • Employers may have better control of alcohol consumption at work if they make the alcohol available and have a procedure in place to ensure that only a certain amount of alcohol is consumed. Some employers use a “kegbot,” an app that requires employees to log in each time they get a drink, which helps the employer track what and how much the employee drank. Some employers have a bar with a server that tracks and monitors consumption. If an employer allows employees to consume cannabis while at work, there simply is no way for the employer to know the strength of the cannabis being consumed or how much. While well-intentioned, this approach may be inadvisable with cannabis products. The employer providing or dispensing marijuana at work may be committing felonious possession with intent to distribute a Schedule I drug under federal law.
  • Under the Occupational Safety and Health Act’s “general duty clause,” employers must furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.” If an employer knowingly tolerates the use of an illegal and impairing drug, such as cannabis, even for medical purposes, while an employee performs hazardous tasks (e.g., driving a forklift), this might create an impermissibly hazardous environment and potential liability for a General Duty Clause violation. We have not yet seen a similar citation issued by federal OSHA or a state plan. Some state plans also have regulations that prohibit employees from being under the influence of drugs or alcohol, which could be the basis of a further citation.

Employers are struggling to address the new hazards of widespread use of recreational cannabis and its potential risks to the workplace. While not all employers are continuing to drug test for cannabis, employers would be wise to consider the many legal liabilities associated with permitting cannabis use in the workplace.

Also read: Workplace initiatives helping to fight opioid epidemic

Adam R. Young is an associate with Seyfarth in Chicago and assists with whistleblower litigation, workplace safety counseling, regulatory counseling, OSHA litigation, and related commercial litigation.

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