Cannabis Considerations for CHROs

A new study found that daily cannabis users in the United States have risen to 17.7 million, surpassing the number of daily alcohol users (14.7 million), as reported in a recent Axios article. While far more people drink alcohol, cannabis is more likely than alcohol to be consumed on a daily basis. The rise in daily cannabis use and increasingly permissive political and societal views towards recreational and medical cannabis prompt considerations for CHROs regarding its potential impacts on the workforce and for company policies.

Policy liberalization leads to increased usage:  The study notes that increased cannabis usage “parallels corresponding changes in cannabis policy…with growth during periods of policy liberalization.”

• In May 2024, President Biden announced progress toward reclassifying cannabis as a Schedule III drug, joining drugs like anabolic steroids and codeine, which have therapeutic uses, but also pose a high risk for developing substance use disorder. What now follows is a rulemaking procedure where “the DEA will gather and consider information and views submitted by the public, in order to make a determination about the appropriate [classification].” President Biden’s cannabis policy positions have ranged from removing five of his staffers in 2021 for reported past cannabis use to pardoning thousands criminally convicted of cannabis possession in 2022. 
  
  
• The Trump administration also addressed a range of cannabis-related issues such as supporting states' rights for cannabis regulation, rescinding the Cole Memo (which opened the door for potential federal prosecution of state-legal cannabis activities, though it was never acted on), and endorsing a World Health Organization recommendation to reschedule cannabis’s restrictive global drug category.

A recent Pew Research report shows that an “overwhelming share of U.S. adults (88%) say cannabis should be legal for medical or recreational use.” With public support at new highs, both candidates may view cannabis policy as a favorable campaign point.

Federal legalization on the horizon? Medical cannabis usage at the state level is not recognized or protected the same way federally, but a change in scheduling could be a first step towards federal recognition of medical cannabis and potential ADA protections. 

Could enforcement shift to employers? Currently, workers in federally regulated safety-sensitive and security-sensitive positions are not allowed to use medical cannabis, even in states where it is legal. This could potentially change with federal recognition of cannabis for prescription use, making employers the primary decision and enforcement point.

Implications for CHROs and their companies: Taken together, the policy climate, societal views, and mental health implications suggest that CHROs should prepare for workplace scenarios where employees may soon be able to legally consume cannabis both recreationally and medically. Below are some points to consider:

Look to existing policy:

• Employers could consider the implications of treating medical cannabis use similarly to opioids.
  
  
• Review alternative testing technologies, consider DOT’s Oral Fluid Specimen Guidelines.
  
  
• Examine Canada's progressive cannabis policies, which are creating conflicting interpretations. For example, an ongoing Canadian court case where a worker’s nightly medical cannabis use was deemed to not be a safety risk for his morning work by his doctor, even though his employer's doctor testified it would take 24 hours to clear his system in order  to return to work. The Canadian Centre for Occupational Health and Safety also provides employer guidance in “Workplace Strategies: Risk of Impairment from Cannabis.”

Reinforce safety in your company culture:

• Employers should review workforce policies and create procedures that ensure safe, drug-free workplaces. Employee well-being is highly correlated with engagement.
  
  
• Consider the mental health implications and review your Employee Assistance Program (EAP) resources.

HR Policy Association members interested in learning more about workplace drug policy should contact Assistant General Counsel, Director of Labor & Employment Law and Policy, Greg Hoff and those interested in workplace mental health should contact Senior Director of Public Policy, Margaret Faso.