Why Pot Policies are the New Must-Have for Contractors

This story was first published in Replacement Contractor.

Along with alcohol and tobacco, contracting employers have a new legal drug to contend with — and experts say many seem unsure, at best, how to deal with it. That drug is marijuana, and it’s now legal in various forms in 28 states and the District of Columbia with more states to come.

In fact in 2016, eight more states made marijuana in some form legal and a national group that lobbies for legalization says it hopes to add eight more states to the list by 2019. Already, one in five Americans adults can legally use weed. And the pot industry, estimated at about $6 billion today, will hit $50 billion by 2026, according to a report from analyst Cowen & Company.

But the sudden legalization of a drug that has historically been illegal may be not be such a boon for employers. “As an employer’s lawyer, it seems to me that legalization of marijuana for recreational purposes is not a good thing,” said Paul L. Bittner, partner and vice chair of the Labor and Employment Group at Ice Miller in a 2015 report entitled Workplace Impacts of Marijuana Legalization. “I discourage employers from changing their drug-free workplace policies.”

But many employers are confused about how legal weed and drug-free workplaces can co-exist. “What are my rights as the employer?” asked Art Castle, executive vice president of the Building Industry Association of Washington, one of the first states to legalize marijuana. “Some of that becomes more gray now.”

What’s not a gray area is how employers can — and should — handle legal pot. “Marijuana in the work place should be treated just like alcohol. It’s not acceptable,” said Lori Rush, president of Rush Recruiting and HR. Rush is a hiring consultant who’s also a member of the Oregon Remodelers Association, another state that was early to adopt legalized marijuana.

To deal with questions around legal marijuana — and clear up any gray areas — Rush recommends that employers update their employee handbooks to include the drug. “Wherever it says alcohol, just add the word ‘marijuana,’” she said. Then make sure employees review and sign the new document to acknowledge they understand the new policy.

Although employers may think they don’t have a problem with marijuana in the workplace, statistics suggest use is higher than many realize, national surveys show.

For example, in 2015, there were 22.2 million current marijuana users aged 12 or older (i.e., users in the past 30 days), according to the Substance Abuse and Mental Health Services Administration’s, 2015 National Survey on Drug Use and Health

Those numbers should encourage employers to address marijuana use head on. “You don’t want people coming to work under the influence of a drug. You not only lose productivity, but the bigger concern for employers is potential liability if there’s an accident and someone gets hurt or killed,” Bittner said.

That’s especially true for contractors who often work in high-risk situations, Castle said. “In construction, people use ladders. They’re running around on roofs and using all kinds of crazy, dangerous tools,” he said. “I’ve seen people who weren’t stoned putting nails through their fingers with these nail guns. What’s the likelihood of that happening if you’re stoned?”

On-the-job injuries can also increase worker’s compensation premiums and make it more difficult to compete, Castle warned. That’s why he and others recommend doing a thorough vetting process before hiring. He also encouraged contractors to talk to their insurance companies and attorneys for more guidance around addressing legal marijuana issues, such as drug testing.

Still, the future of legalized marijuana has recently gotten fuzzier. Although many states are legalizing pot, it’s still federally illegal. The Trump administration has already made headlines in suggesting the Department of Justice will increase enforcement of federal laws prohibiting recreational pot, even in states where it’s already legal.

Meanwhile, the Marijuana Policy Project, a group aimed at legalizing marijuana, said it’s lobbying and building coalitions to regulate marijuana like alcohol via several state legislatures including Connecticut, Delaware, Illinois, Maryland, New Hampshire, Rhode Island and Vermont. The group is exploring teaming up with Michigan advocates to legalize and regulate marijuana in 2018. And it’s advocating for medical marijuana-related bills in several other states including Louisiana, Nebraska, South Carolina, Texas and West Virginia.