Excerpted from a Littler Mendelson PC Blog by Lauren M. Bridenbaugh
I’m in charge of organizing our holiday party this year. To keep things civil, we’re limiting alcohol and reminding employees that although our state has legalized the recreational use of marijuana, there is to be no pot at the potluck. But a colleague just asked whether it covers psychedelics. What the dickens is this about?
–Trying Not to Be a Scrooge
Dear Trying Not to Be a Scrooge,
Federal, state and local laws governing drug and alcohol use and their effects on the workplace are rapidly changing. To help you wrap your head around this evolving topic, here’s a brief overview.
Workplaces Past – Smoking
Readers may recall the days of old when workplaces were full of cigar and cigarette smoke. As rates of tobacco use and smoking have decreased and knowledge of the effects of secondhand smoke have increased, all but six states explicitly prohibit smoking in places of employment.
Increasingly, these indoor smoking prohibitions also include prohibitions on vaping indoors. Some states also prohibit smoking within a certain distance of the entrance to places of employment.
Nevertheless, while employers can prohibit tobacco use in the workplace, many states have laws that prohibit discrimination based on off-duty conduct such that employers cannot discriminate against employees who smoke, vape or otherwise engage in legal use of tobacco products while not working.
Workplaces Present – Alcohol and Marijuana
Employers can prohibit the use of alcohol in the workplace and prohibit employees from being under the influence while working. This is particularly true for employers that allow (and provide) alcohol at work events. If alcohol will be served, there are simple ways to reduce the likelihood attendees will overindulge. For example, consider issuing employees a limited number of drink tickets.
Perhaps limit the types of alcohol offered to beer and wine, and serve food. Employers should set concrete hours for the event and ensure that non-alcoholic beverages are available. Employers could also coordinate designated drivers or sponsor rides home as needed.
Marijuana use has become an increasingly hot-button issue. Federal law prohibits marijuana use for medical and recreational purposes. However, the vast majority of states permit medical use and almost half of states permit recreational use. Along with recent legalization in various jurisdictions, we are seeing more restrictions on drug testing for marijuana. Some states prohibit employers’ ability to drug test prospective or current employees absent a concern they are impaired.
Even with marijuana legalization, employers can always prohibit the use and possession of marijuana in the workplace and mandate that employees are not under the influence at work-sponsored events.
Workplaces Yet to Come – Psychedelics
Finally, we turn to psychedelics, the new frontier in drug legalization. While the legalization of psychedelics is limited, their use for medical and recreational purposes is an increasing point of discussion.
In 2020, Oregon voters approved the Psilocybin Services Act. The Act permits the therapeutic use of psilocybin by qualifying individuals aged 21 and over with specified mental health conditions. These individuals may only obtain psilocybin services after first completing a preparation session with a licensed facilitator and can only access at a licensed service center.
In Colorado, voters approved a new law permitting the cultivation, sale, and administration of certain natural psychedelics, including the chemicals in psychedelic mushrooms. The Colorado Department of Regulatory Agencies will develop a training and licensure program.
In the employment context, the new Colorado law does not require employers to allow or accommodate the use of natural medicines in the workplace. A few other localities have passed ordinances decriminalizing psilocybin, with a number of state bills pending.
In summary, substance abuse concerns continue to provide challenges for employers. Employers should continue to stay apprised of new laws and revisit their drug and alcohol-free workplace and testing policies on a regular basis.
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