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November 2020

Construction Industry’s Emerging Best Practices for Navigating the Haze of Marijuana Legalization

On November 3, 2020, marijuana emerged from election night on fire! Marijuana was on the ballot in five states and proved victorious in all five. South Dakota voters voted to legalize both recreational and medicinal marijuana use. Arizona, Montana, and New Jersey voted to legalize the recreational use of marijuana, while Mississippi voters voted to legalize medicinal marijuana use. Currently, 34 states and two territories allow medical marijuana use and 15 states, Washington D.C and two territories allow recreational use of marijuana.

Despite the growing number of states legalizing marijuana, it is still illegal to use or possess marijuana under federal law. However, House Majority Leader Steny Hoyer (D-MD) of the United States House of Representatives last month declared that the House would proceed to take a floor vote on the Marijuana Opportunity, Reinvestment, and Expungement Act (“MORE Act”) of 2019.1 This bill seeks to decriminalize marijuana under federal law. Specifically, it removes marijuana from the list of scheduled substances under the Controlled Substances Act and eliminates criminal penalties for an individual who manufactures, distributes, or possesses marijuana. It goes further by expunging the records of those with prior marijuana convictions, and allows for resentencing of those incarcerated for marijuana offenses, among other things.

It is unlikely that the MORE Act will become law even if the vote passes the House because Senate Majority leader Mitch McConnell (R-KY), in a Republican led Senate, opposes continued marijuana decriminalization despite his staunch support of the hemp industry. So for now, the construction industry can take a quick breath in knowing that the MORE Act is unlikely to pass this year.2

The rapid pace of marijuana decriminalization has caused confusion and uncertainty among construction industry employers because of the safety sensitive nature of the work. There are so many questions that arise that tend to focus on how best to approach the goal of maintaining a workplace that is safe for all workers when marijuana is legal. As a result, best practices, in navigating a world where “Pot’ is legal, have emerged concerning revamping employment policies and procedures; designating “safety sensitive positions”; approaching medical marijuana usage and testing for drugs in the workplace.

Best Practices: Employment Policies and Procedures

  • Treat marijuana the same as alcohol or prescription drugs when not working under a federal contract and when in a state that has legalized marijuana;
  • Consider changes to drug policies based on workplace, relevant state law, federal contract projects, safety needs and culture;
  • If the desire is to prohibit use and can lawfully do so under relevant state law, ensure that policy addresses drugs “illegal under state or federal law, including marijuana”;
  • Consider only testing employees in safety-sensitive positions and in reasonable suspicion/post-accident situations so as not to capture off-duty use that doesn’t affect work; and
  • Have a clear policy, communicate it, and apply it consistently, so employees know what to expect!

Best Practices: Safety Sensitive Positon Designations

  • Designate safety sensitive positions in writing and make sure that job descriptions reflect how impairment would pose a safety risk.
  • Include in job descriptions a notice of potential drug testing for safety sensitive positions and that the respective position is deemed to be a safety sensitive position.
  • Offer employee assistance where appropriate (e.g., leave for drug/alcohol rehabilitation, Employee Assistance Program).

Best Practices: Dealing with Medical Marijuana in the Workplace

  • Be aware of the states who are or will be legalizing medical and recreational use of marijuana in the future;
  • Recognize state marijuana laws are not all created the same, and each state affords different protections to the employee;
  • Engage in the interactive process when discovering an employee is using marijuana for medical reasons (and is employed in a state that has legalized cannabis for medicinal use). State disability laws will play a role in how the matter should be handled;
  • Have your employee take the job description to their doctor for review to determine whether the employee can safely perform the tasks;
  • Evaluate the employee’s ability to safely perform the essential functions of the job with or without reasonable accommodations; and
  • Remember the “safety-sensitive” position designation.

Best Practices: Drug Testing for Marijuana in the Workplace

  • Drug tests are not yet a reliable source to establish whether employee is under the influence of marijuana.
  • Train Managers and Supervisors to Identify Signs of Impairment; and
  • Remind employees of Company’s Zero Tolerance for On-Job Impairment.
  • Company’s Alcohol and Drug-Free Workplace policies should include when drug testing will occur and for what type of drugs.
  • Revise drug and alcohol policy to state that employees will be disciplined up to and including termination, when the employee is found to be displaying behaviors consistent with being under the influence and tests positive for marijuana.


1 Interestingly, Vice President-elect Kamala Harris was the Senate sponsor of the MORE Act.
2 A continued Republican led Senate is not certain as two senate seats in Georgia are not yet settled. Both these seats are currently held by Republicans, but that could change. Democrats would need to capture both seats in Georgia to secure a 50-50 tie in the Senate. Then, Vice President-elect Kamala Harris would cast the tiebreaking vote. This result will make it more likely that the MORE Act becomes law.


Rheanne Dodson Falkner