Keya Denner, co-chair of Constangy’s Cannabis & Employee Substance Abuse practice, was featured on the March 12, 2023 episode of the Emerging Litigation Podcast providing an in-depth look on risks facing employers, especially multi-state employers, given the country’s patchwork legal framework related to cannabis use.
Denner spoke with host Tom Hagy for more than 50 minutes providing perspective on the wide range of issues being watched related to cannabis regulation around the U.S.. Given the state-by-state variance of protections, employers with operations across jurisdictions must be mindful of the risks associated with their employment policies.
Because federal prohibition on cannabis still applies across the board, employers in states with even the most cannabis-friendly framework are not expected to allow employees to come to work impaired or to change policies in a way that violates federal law, and businesses contracting with the federal government have exceptions to ensure compliance with those agreements.
However, the risk for litigation related to any employment decision remains, and among the most common example Denner cited occurs when a multi-state company requires pre-employment testing and has a zero tolerance policy. If a candidate is extended an offer and tests positive for cannabis in the pre-employment screening, the decision to rescind the offer is very different depending on the state law. “If you rescind that job offer, and you’re in Texas, you’ve got no issues,” Denner explained, given Texas’ prohibition of cannabis use. “But if you’re in New Jersey, you’re probably going to get a lawyer letter.”
With such uncertainty to consider, Denner spent much of the podcast offering insight on strategies for multi-state employers addressing the patchwork legal landscape, including identifying specific business needs to address related to cannabis policy, communications considerations and formalized policies with state supplements.
For the full episode and more insight on how multi-state employers can manage the many legal questions related to cannabis in the workplace, please click here.