Getting into the Weeds of Legalization

​Recreational marijuana presents challenges for employers
By Jackson Bistany, Policy Intern
 
Several states have been the drivers of policy changes to cannabis legalization, and it appears as though the trend will continue. For now, it remains predominantly a state’s decision whether to allow the sale and consumption of it, and in Delaware the topic is on the table as lawmakers consider recreational marijuana legalization in 2022.

Cannabis legalization offers more freedom of choice for individuals to decide for themselves how they spend their time and money. However, if passed, legalization could bring about complex challenges into the workplace and put employers in an uncomfortable bind.

The U.S. is currently experiencing a job surplus. According to the U.S. Bureau of Labor Statistics, there are roughly 9.2 million open positions throughout the United States. Companies across the country are desperate for workers that possess the skill sets necessary for to fill open positions. Legalization could add to this burden by making recruitment and retention efforts increasingly difficult for businesses trying to build a skilled workforce while maintaining a drug free workplace policy.

Problems also arise when we consider the discrete nature of many THC products available today. In dispensaries across legal states, one can walk into a store to buy brownies, cookies, or infused candy and consume these products without detection. This readily available concealment is not shared by alcohol where the scent of consumption is apparent, and an individual must consume substantially greater quantities before impairment.

Delaware has a very diverse business community comprised of cognitively demanding businesses that are accompanied by grave consequences when mistakes are made. At Kuehne Chemical Company, a typical day involves the transportation and storage of several dangerous and potent chemicals, which means there is no room for error.

Bill Paulin, president at Kuehne, expressed concern for legalization explaining that “when someone makes a mistake, it could be a fatal one. So, we have to enforce a zero-tolerance policy or else people in our community and our team members could lose their lives."

Concerns regarding workplace accidents due to impairment are not limited to dangerous or physically demanding positions. Every job operates at varying levels of responsibility, whether that is operating machinery, preparing a legal brief, or balancing financial statements. The simple fact is that no manager needs a greater probability of a mistake being made at the workplace.

One of the larger issues surrounding cannabis is the lack of an accurate and decipherable on-the-spot sobriety test. This makes it impossible for employers to determine if someone used cannabis two weeks ago or an hour ago.

Currently in legal states the primary method of impairment detection used by police officers is the Standardized Field Sobriety Test. This is mainly based on physical capabilities like balance and coordination, much of which does not apply well to THC impairment. Other more subtle indicators are looked for by police but are much more difficult to notice to the non-experts and can be subjective to individuals and their unique bodies and tendencies.

This method of identifying insobriety on the spot is still rudimentary and is executed by professionals that have training and experience in recognizing specific signs. This is not something that employers are trained to identify, making it difficult for anyone to make the call on whether an employee is under the influence. These situations become messier when lawsuits become a factor as disgruntled employees may feel they were unjustifiably dismissed.

Impairment is an issue in the workplace that employers must be vigilant in preventing. Recreational marijuana legalization adds to this stress and creates greater ambiguity around the nature of impairment.

Companies will always put the safety of their employees, customers, and operation first. Until employers are protected from liability and can accurately identify impairment, businesses will maintain internal zero tolerance policies and reserve the right to make employment decisions with exemption from litigation.

Until the science of cannabis advances to the point of accurate and reliable spot tests, businesses are wary to move forward with more lenient policies. Until then it is critical to the Delaware business community that employers be able to construct their own workplace policies and be able to make decisions according to that policy without the fear of legal repercussions.
 
Jackson Bistany served as a summer policy intern with the Delaware State Chamber of Commerce. He is a rising senior at the University of Delaware with double majors in finance and management.

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