Legalized Marijuana Increases Companies’ Liability

In our last blog we talked about how legalizing marijuana would affect or affects business (in states that have already legalized it). So far 8 states have already legalized marijuana for recreational use: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington. In Michigan and North Dakota, ballot proposals will let voters decide if they want to legalize it this upcoming November 6th.

It’s important to note that some workers may not understand that in places where marijuana is not illegal, legalization does not protect them from getting fired or not being hired if they test positive for marijuana use. Michigan’s ballot proposal specifically states:

“This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marijuana.”

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In the case of federal workers, employers have no choice but to terminate workers who test positive for marijuana under the federal government’s zero-tolerance drug policy. Many other companies, including Ford and Consumers Energy, have similar policies and do not intend to change them if this ballot proposal passes in Michigan. They do this both to ensure safety standards for their employees and their customers and also to limit their own liability.

The Michigan Chamber of Commerce has come out as opposing this ballot proposal, in large part because legalizing marijuana increases companies’ liability. OSHA requires that employers provide their workers with a workplace that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”

Currently there is no on-demand impairment test for marijuana, only blood and urine tests. These can only detect the presence of marijuana, not measure impairment. So there is no objective way to determine if an employee is impaired on the job. If a manager disciplines or fires a worker for impairment, that’s a judgment call the worker can dispute.

If an impaired worker creates a safety risk because of their impairment, the company is liable for any injury or damage – not just to others but also to the impaired workers themselves. If an impaired worker injures himself on the job because he is high, the company would be legally required to pay workers’ compensation.

This creates further hassles for managers and human resources departments who are not as familiar with marijuana impairment and how it affects users abilities to function as they are with alcohol impairment. Workers may see pot use as harmless, but increased risk and increased liability is a lose-lose situation for employers. It opens them up for HR headaches and potential lawsuits.

Canada legalized recreational marijuana use this month, and the country is already experiencing a marijuana shortage. When Nevada and Colorado legalized weed, they had similar shortages. Over time the market takes care of these discrepancies between demand and supply, but it seems likely that weed use goes up in places where it is legal. How that affects individuals in their ability to perform their jobs safely and well is something that can only be studied over time.

Where marijuana is legalized, there is a whole new learning curve for both workers and company managers in terms of deciding how to determine if workers are impaired or if their recreational use of marijuana disqualifies them for employment. The trend is for legalization, so companies need to be aware of how they will act to limit their own vulnerability.