Meat+Poultry - January 2023 - 78

LABOR
Marijuana and the workplace
The marijuana industry is booming
across the country. Marijuana use is
still viewed negatively by many, but
that is changing. Marijuana sales in the
United States increased 67% in 2020
and another 40% in 2021, reaching $26.5
billion in sales. In 2022 it exceeded
$32 billion in sales. According to
Gallup, the percentage of adults in the
country who have tried marijuana at
least once is 49%. Even 19% of persons
born before 1945 say they have tried
marijuana. According to a 2021 Pew
Research Center study, 91% of adults in
the United States support legalization.
Today, medical marijuana is legal
in 38 states. In 21 of those states and
the District of Columbia, recreational
marijuana is legal, and at least nine more
states have ballot initiatives at some
stage of development. Canada legalized
marijuana in 2018. At the federal level
in the United States, marijuana remains
classified as a Schedule 1, illegal drug.
Nonetheless, the rapid proliferation
of state marijuana laws and the
workplace protections provided by
some of these laws, has made employer
compliance a major task. Some states,
Nevada, New Jersey, and New York,
for example, and even some cities such
as New York City and Philadelphia
prohibit employers from refusing to
hire applicants because of a positive for
marijuana on pre-employment drug tests.
Numerous states prohibit adverse action
altogether based solely upon a positive
drug test result. To take disciplinary
action in New Jersey, an employer must
have independent evidence of conduct
or behavior that demonstrates that an
employee was impaired by marijuana
while at work. Unlike breathalyzer tests
for alcohol impairment, no reliable
test exists to confirm a certain level
of marijuana metabolites in a person's
system proves impairment or how
recently marijuana was used.
Medical marijuana used to treat
numerous medical conditions is
widespread and growing. It generally
requires a doctor's prescription, and
many states issue a medical marijuana
card. Several states require employers
to reasonably accommodate employees
using medical marijuana, which means
an employer cannot fire an employee
simply for being a medical marijuana
user. However, no state requires
that an employer permit the use of
medical marijuana while working or in
the workplace.
An increasing number of states
have adopted laws that protect lawful,
off-duty conduct by employees. States
generally passed these laws to prevent
employers from disciplining employees
for political beliefs or actions or other
activities an employer may disagree
with. Colorado has such an off-duty
law and is one good example of how
marijuana can be treated under such
a law. Even though medical and
recreational marijuana use is legal under
Colorado law, the Colorado Supreme
Court ruled that the off-duty conduct
law does not protect employees' offduty
marijuana use because marijuana
remains illegal under federal law and its
use is therefore not lawful conduct.
As previously noted, maintaining a
drug-free workplace increasingly poses
a challenge to employers as more
states relax their prohibition against
marijuana use and grant workplace
protections. Some employers have
dropped pre-employment marijuana
screening altogether. Some have
kept pre-employment screening but
dropped marijuana from the screen.
Many employers have chosen to rely on
" post-accident " and " for-cause " testing
to identify marijuana-caused issues.
Whatever approach to marijuana
testing an employer chooses can
only be successfully defended if it's
consistently enforced and well known
to employees. The key to achieving
consistency is adequately training
managers and supervisors to identify
and respond to impaired employees.
However this training is accomplished,
it is well worth the effort in the face of
constantly evolving marijuana laws and
a necessary step to ensure consistent
enforcement of plant operators'
drug policies.
RICHARD D. ALANIZ | meatpoult r y@sos land.com
Maintaining a drug-free workplace
increasingly poses a challenge to
employers as more states relax their
prohibition against marijuana use.
78 MEAT+POULTRY | 01.23 | www.meatpoultry.com
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Meat+Poultry - January 2023

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