How to Develop a Cannabis Use Policy in 2024 That Complies With State Regulations and Protects Your Business

Over the past three decades, public opinion regarding cannabis has shifted dramatically — and legislation along with it. For many patients coping with unique medical challenges, this change has been nothing short of a miracle, offering a viable alternative to pharmaceuticals like opioids in some cases.

Recreational legalization has also had a major impact on consumers in several states, and employers have not been unaffected by these changing cannabis laws, either. Increasing legalization and consumer protections have left many business owners wondering whether they can legally implement and enforce policies prohibiting cannabis use by employees.

Here’s what you need to know to develop a suitable policy for your company that complies with current regulations in California.

Understanding Recent Cannabis Laws in California

Cannabis laws apply at both state and federal levels. Marijuana remains illegal under federal law, where it is still classified as a Schedule I substance or having no medical value and high potential for abuse.

That may soon change, however, as the Justice Department recently submitted a proposal to reclassify marijuana as a Schedule III substance. This would not make it legal, per se, and the potential ramifications for businesses are unclear.

Notably, the 2018 Farm Bill legalized industrial hemp containing 0.3% or less THC at the federal level, including hemp CBD and other hemp products. However, the impact on employers was not significant because drug testing is designed to gauge levels of psychoactive THC.

Currently, only four states maintain total bans on marijuana, while two others have only decriminalized it, although it remains illegal to sell, distribute, purchase, possess, or consume in these states. When California passed the Compassionate Use Act in 1996, it became the first state to legalize medical marijuana.

With the passage of Proposition 64, or the Adult Use of Marijuana Act, in 2016, recreational marijuana was also legalized in California for adults aged 21 and over. More recently, Assembly Bill 2188 went into effect, and the impact on employers could be significant.

The Impact of AB 2188

AB 2188, which went into effect January 1, 2024, amends the California Fair Employment and Housing Act so that an employer may not discriminate or penalize employees for legal cannabis use outside the workplace. This applies to hiring and firing, as well as the terms and conditions of employment.

In practical terms, this means failing a drug test, specifically for marijuana use, is not enough to impact hiring, firing, and other employment decisions. There are some caveats, though. For example, this law does not allow for the possession or use of cannabis on the job, nor does it excuse impairment during work.

The law specifies that discrimination is prohibited in cases where a drug screening reveals the presence of nonpsychoactive cannabis metabolites that would not indicate impairment. The problem is that drug screening tests use urine, blood, and hair samples, which often show these metabolites. This can make it difficult to tell how recently cannabis was consumed.

Guidelines for a Forward-Thinking Cannabis Policy

Changing cannabis laws presents a range of challenges for businesses, but they don’t make it impossible to enforce a drug-free workplace. How can you ensure a safe and productive work environment when you can’t penalize employees for cannabis use? The answer lies in creating sensible policies that comply with state laws.

Redefine Zero-Tolerance

This common policy prohibits all drug use but doesn’t account for changing cannabis laws. Still, you have some latitude to control your operation and ensure a safe and productive work setting. Consider including language in your policies that prohibits possession and use of cannabis in the workplace and while employees are on the job, along with a zero-tolerance stance on impairment of any kind during work.

Rethink Testing

Since current drug tests for cannabis may not provide a clear picture of when consumption occurred or how impaired a person might be, you need to modify your criteria to include testing for impairment.

Such tests typically measure cognitive and psychomotor capabilities by comparing them to a baseline, which you may collect at the time of hire, for example.

While some employers have mandatory periodic testing, you might want to implement a “suspicion of use” policy, whereby you test employees who are suspected of being impaired. This could include drug and/or impairment tests.

Implement Mandatory Education

Policies can only be effective if employees know and understand them. It could be helpful to include education in this area as part of your mandatory training for new hires. This portion of training could not only include your policies, procedures, and penalties, but also information on the dangers of impairment in the workplace.

Schedule Periodic Policy Review

With so many significant changes to the legal landscape surrounding cannabis in recent years and more potential advances on the horizon, it’s wise to implement a schedule of periodic reviews for your company policies and procedures.

This will help to ensure that you remain in compliance with current legislation and avoid potential liabilities. You may want to review your policy annually or whenever significant legislation is passed.

Protect Your Business by Implementing a Cautious and Compliant Cannabis Policy

Creating drug policies for your company is a balancing act that requires you to consider company goals, employee rights, workplace safety, and changing laws. Ultimately, you are liable for maintaining a safe workplace, and employees who are impaired can impact safety, not to mention overall productivity.

Policies must be designed to mitigate risks and respond to potential threats while complying with existing laws. The best way to reach your goals while minimizing legal liability is to consult with legal experts who are versed in applicable local, state, and federal regulations.

With an understanding of cannabis laws, regular policy reviews, and the help of a trusted attorney, you can create and update policies that comply with the law while also protecting your company and workers.

To develop or update your cannabis use policy, consult with the experienced attorneys at Pearlman, Brown & Wax, LLP.