Once demonized, criminalized, and the target of billions of dollars of ultimately failed law enforce­ment, marijuana is now a legal recreational drug for people 21 and older in 10 states, as well as Washington, D.C. New Jersey is ready to roll. People like pot, apparently. They also need it. Medically prescribed cannabis is permitted in 33 states, with Utah and Missouri the latest to approve it, in November.

For businesses, particularly multistate ones, this legal and societal shift is forcing a rethink about the zero-tolerance attitude that prevailed just a few years ago. Such a policy may now be a competitive dis­advantage, especially in an ever-tightening labor market.

This new reality demands that employers "closely examine current policies, or their absence, tied to marijuana usage, update or change them as they see fit, and relay as much detail as possible," says Dan Rowland, a Denver-based marijuana-policy industry consultant. That, ideally, should include educating yourself on the subject and sharing your views with staff on how their off-duty access to pot might play out at work. While you're at it, says Rowland, use the change in marijuana laws as a rationale to review all your office policies.

Here are some points to consider.

1. You can still just say no.

Whether pot is legal in your state or not, you are still free to ban marijuana use on the job, just as you can alcohol, for that matter. Employers in the U.S. have the latitude to set a variety of workplace rules and standards, as long as they're not discriminatory. That includes firing an employee for using pot at work in states where it's legal recreationally. In Colorado, the pioneering pot state, most companies have instituted zero-tolerance policies banning recreational pot on the job, which state law allows them to do.

Pot by the numbers
18,000
Approximate number of people employed by the $1.5 billion-a-year legal marijuana industry in Colorado (where recreational use was approved in 2014), according to the Kansas City Federal Reserve.
67%
Segment of Americans who favor outright legalization, according to a recent Gallup poll.
$10 billion
Amount of sales tied to the legal marijuana market nationwide in 2017, according to Arcview Market Research and BDS Analytics. That was up 33 percent from 2016.
603
Number of fundraising deals in 2018, worth $14.1 billion, according to Viridian Capital Advisors.

"Just because it's legal doesn't mean it's acceptable at work," says Jennifer Fodden, the director of workplace support for the U.S. and Canada at LifeWorks by Morneau Shepell, an employee well-being and assistance company. Make sure your company's policy language is clear and outlines exactly what's expected during working hours. It's equally important that you include language on whether recreational marijuana--which now includes flowers, edibles, topicals, and concentrates--is acceptable at company functions where alcohol is being consumed, says Fodden.

A no-tolerance policy regarding marijuana usage at the 450-employee TOPS AllTek Staffing and Resource Group in Pittsburgh has pretty much mitigated any human resources issues. "The clearer the policy, the fewer the problems," says Susan Dietrich, president of the company, which funnels high-level workers to the region's engineering, light-industrial, accounting, IT, and office-administration sectors. All workers are drug-tested before they're sent to a job. That eliminates room for error, questions, and gray areas tied to performance and related issues.

2. You can't say no to medical marijuana.

Most workers must be allowed to take medical pot just as they would any other legal drug. Even at zero-tolerance TOPS, company policy specifically allows legal, physician-certified medical marijuana usage. There are two main chemicals in marijuana, delta-9-tetrahydrocannabinol (THC) and cannabidiol (CBD). It's the THC that produces the high. According to the Harvard Health Letter, many patients can benefit from CBD, which doesn't mess with your head. While the FDA has approved a medication that uses CBD for only two epileptic conditions, marijuana is being legally prescribed to treat PTSD, Crohn's disease, nausea, cancer, multiple sclerosis, and chronic pain.

Marijuana is safer for pain management than opiates, according to doctors writing in the Harvard Health Letter. But even in medical marijuana states, there are exceptions. For example, employees covered by Department of Transportation regulations, such as pilots or truck drivers, are still proscribed from pot or other such drugs that might affect job performance.

3. The law is still unsettled.

Marijuana remains on the federal books as a Schedule 1 drug, putting it in the same category as heroin. That's created some ambiguity. Broadly, states have implied legal protection from federal law through the Rohrabacher-Blumenauer Amendment, which bans the federal government from using federal money to interfere with the implementation of state laws legalizing medical marijuana.

Think about medical marijuana the same way you think about prescription opiates, says Denise Elliott, a labor lawyer with McNees Wallace & Nurick, in Harrisburg, Pennsylvania. Employers can prohibit on-duty, on-premises usage, but ask yourself: What is my risk aversion? Is the bigger potential threat an accident on the job, or being sued for discrimination?

This state-federal mashup will inevitably be resolved in legal cases, and some have bubbled up. In one, an employee for Sodexo, a food and catering contractor, fell and injured herself in a kitchen in Massachusetts, where recreational pot is legal. After she reported the fall to management, she took a drug test, which was positive for marijuana--consumed off the job­--and was fired. She took Sodexo to arbitration. "This is an evolving legal and social issue," a company spokesman said in a statement, reflecting the national ambiguity. "As many employers are currently doing, we are evaluating our policies in light of the changing landscape."

4. To Test, or Not to Test?

Given that marijuana is becoming an acceptable recreational drug, should you do away with drug testing? Companies are headed in that direction. "It seems a little weird to think we are so interested in whether somebody has used marijuana in the last month rather than whether they've got the skills to perform the job," says Peter Cappelli, the director of the Center for Human Resources at the Wharton School. With unemployment at 4 percent, pools of capable job prospects are getting shallow; the prospect of a drug test evaporates more of that pool. AutoNation, for example, a Fort Lauderdale, Florida-based car retailer with dealerships across the country, maintains drug- and alcohol-free workplaces. But the company no longer includes marijuana use in hiring decisions. 

Cappelli believes business owners should rethink pot testing because it's been typically used to identify people who were breaking the law. With legal marijuana, what's the value, especially since tests can't detect impairment? "Are you testing for alcohol use, which is also legal but impairs behavior? And the answer is, virtually never," Cappelli says. 

A more timely approach is to use oral fluid samples in place of urine samples to test, says Pamela Powell, director of U.S. drug testing at LifeWorks. The oral test shows only recent use, thus offering a narrower time window; a urine test can detect usage over the previous 30 days.

From the March/April 2019 issue of Inc. Magazine