Q&A: Marijuana was just legalized in my state. How do I create the right office policy?

Danny Speros, Director of People Ops, Zenefits
Jan 26, 2021

The 2020 elections, saw the “green wave” of voters supporting marijuana legalization in states across the country. Now that 1 in 3 Americans live in a state where marijuana is legal, what does that mean for company policies to keep their people safe?

In November, we got this question in the Zenefits customer community: Help! Arizona just legalized marijuana use. What should I be covering in our employee handbook about this?

Senior Director of People Operations at Zenefits—which has offices in two states, California and Arizona, that have recently legalized marijuana use—shares perspective on the trend, the compliance impacts and the common sense approach small businesses can consider.

In this Q&A, you’ll hear:

  • The growing nationwide adoption of legalizing marijuana use for medicinal and recreational use
  • Common sense approaches to how this impacts your people in and out of the office
  • What that means for company responsibility, policy and communication

POPS Star Bio

Danny comes from a family of entrepreneurs and spent 8 years running the family construction business including HR, Sales, Operations and Accounting. He understands the joys and challenges of building a business and learned a lot about how to avoid some common pitfalls. This context fuels his passion for working with other small businesses at Zenefits. Today, Danny taps more than 20 years of People Ops and small business leadership in his role as Senior Director of People at Zenefits. This makes him a great guest expert for the podcast, so you’ll hear from him often.  And you might just catch an occasional cameo from his young daughter in the background.

After you listen:

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Danny Speros: Our state just legalized recreational marijuana. How do I create or amend a policy for this?

Didi D’Errico: Welcome to Pop’s the show that shows you how to shift from human resources, paperwork to people, operations for the new world of work. How by answering one question at a time, Today to help us answer your question. Here’s Danny Speros, the Director of People Operations at Zenefits.  

Danny Speros: We’ve been seeing this a lot lately. So in the past election, in November, we saw a handful of States. Add some additional, uh, protections or legalization for certain different drugs. I particularly, work in Arizona where medical marijuana had been legal for the last few years and recreational marijuana was legalized.

Now there are still some things that they’ve got to work through in terms of. Guidance and regulations and things like that. But these are things that are coming up pretty regularly. Obviously, there are a couple of other states that have had this for a while and it’s becoming more and more common to see that.

So what do you do? I think first thing is to think about it from a couple of different points of view. And I realized that I may be talking to a range of different people with different experiences and backgrounds here, but just to kind of address at a high level. I think it’s important to kind of recognize the acceptance and use of marijuana over the last gosh, even a couple of years, but certainly, over the last 20 or so years, this is not just the one person who smoked a lot of weed in college and, uh, and slept in and things along those lines, people are using this recreationally and medically with success. And I think it’s important for those that may have some of those stereotypes to start to think about working through some of those stereotypes, of your typical marijuana user. It’s being shown to have, uh, great impacts for people on a medical basis, as well as possibly being less harmful than some of the other alternatives on a recreational basis.

So it’s out there. Um, it’s legal and what are you going to do about it first and foremost from a policy standpoint? Really just need to think about it from a philosophical standpoint. How do you treat certain things and maybe start to think about how do you treat alcohol in your workplace? How do you treat, um, alcohol outside of your workplace?

How do you treat drugs previously? Illegal drugs instilled possibly currently illegal drugs in your workplace. And how do you sort of regulate and think about employee’s use of those kinds of things outside of work? There are a number of industries where it’s still important to do drug testing from the trucking industry where there’s the federal department of transportation regulations down to just personal preference, or perhaps an organization has a contract with.

City police departments or federal agencies, things along those lines. So there may be some requirements where you really need to think thoughtfully and artfully as you sort of navigate the fact that it’s still illegal on the federal side, but now becoming more and more legal and acceptable on the stateside.

Which one do you follow? Kind of at a high level and it’s a, I’m not an attorney. So this isn’t legal advice, but just to try and sort of talk through some of the different things to think about along those lines, it is still an illegal substance on the federal level, and it is becoming more legal and more States, and so there are certain things you need to think about in terms of federal law, which governs an awful lot of employment law and state law, which can also impact some of the different employment laws out there. The next thing to sort of think through is. To what extent do you have events or things along those lines?

Um, when we were talking about this at the company, um, someone joked, but, um, at some point in the future, it might not be a joke, but what about happy hours with pot tasting instead of beer tasting events or wine tasting events. These may be coming soon to a happy hour near you. I can’t tell you how your organization’s going to work, but these are things that you should think about if you’re in a state where those kinds of things are, are legal from a recreational standpoint.

Is that something you’re cool with, is that something you want to allow? Is that something you want to tolerate or is it something you want to prevent from happening? Because even though it’s legal, it doesn’t mean that you have to allow employees to do it, use it on your worksite, that sort of thing, but another thing to think about is what happens if something happens. I’ve worked in manufacturing and construction before where we’re working with heavy equipment, um, sometimes dangerous work sites where there’s a potential for physical harm and what I want anybody intoxicated under the influence things along those lines in the workplace.

Oh, Heck. No. And so, uh, what if something were to happen? Um, I’ve worked at places where we’ve had, um, post-incident drug testing. Um, should you continue to do post-incident drug testing in scenarios like that? Again, these are things to think about. And also one of the challenges here is to think about the limitations of post-incident drug testing and, um, sometimes alcohol testing and breathalyzers most drug tests are going to let you know whether or not the person has used that particular drug in sometimes the last day, sometimes the last couple of weeks, sometimes the last month, but it may not tell you whether or not the person was under the influence of it at the moment. As opposed to, um, like alcohol breathalyzer or blood tests, which can give a better indication as to whether or not someone was under the influence at the time the test was taken.

And this is where some of the, uh, federal guidelines get a little tricky in the sense that, um, The Americans with disabilities act comes into play. And this is something that you’ll definitely want to consider in developing any policy around marijuana use, particularly with respect to medical marijuana, in the case of medical marijuana, um, somebody may be prescribed that.

For use to treat a condition, which would be covered by the Americans with disabilities act. Now, the trick here is that the Americans with disabilities act as a federal law where the federal government still recognizes marijuana as, an illegal substance. Um, so there are a couple of different things to think about.

Certainly, work with an attorney. If you’re intending to. Take action. Adverse action against an employee for, um, failure on a marijuana drug test and things along those lines, because that’s going to be some tricky areas to navigate. Now on the flip side, one of the things that you can look to do is, and again, depending on your industry, depending on your situation, one of the things that you can look to do is write a policy that restricts.

Being under the influence or being intoxicated while in the workplace or in a work environment, perhaps he might want to set out some, uh, exceptions to something along those lines where moderate use of legal substances can be. Condoned at work events where, uh, it’s explicitly allowed things along those lines.

As a company that in the past has had beer kegs in our office that we’ve had to sort of create some guidelines around, uh, when you can have a beer, um, things along those lines. That’s kind of the line that we’ve taken is to really focus on, um, employees not being intoxicated or being under the influence, of a substance while in the workplace or in the work environment.

But again, these are things for you to think about and things for you to sort of work your own way through. I think it’s important too. Create policies and guidelines that really help employees understand what’s expected of them in the workplace and how you operate in the workplace. Um, I think transparency is important around that.

I caution people when they’re creating policies to prevent one person from doing one thing. Right. So, and so did this one time, let’s create a policy so that we can fire the next person that does that policies get really tricky when you start piling one on top of the other, on top of the other to prevent every possible negative thing that could happen in the workplace, but I do think having some sort of clear expectation really helps employees understand like, Here’s the line, here’s the wrong side of that line. I know where to operate. Um, and it helps everybody get together and work together and really function in a good environment so that there’s not a feeling of somebody doing something wrong. Somebody is doing something wrong, but not sharing that with them until the manager set up and wants to take tougher action against the employee. 

Didi D’Errico: Do you have a question for our experts? Click the link in the show notes, or if you’ve got other ideas and feedback about our show, send them to [email protected]

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About The People Ops Podcast

Every week, we share the decisions, struggles, and successes for keeping up with an evolving workforce and a changing workplace. No matter if you’ve been in HR or are just getting started, this combination of transformational stories with actionable ideas, as well as context on hot issues, keeps you up-to-date while answering the questions you didn’t even know you had.

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