Free Enterprise - The FindLaw Small Business Law Blog

Should Small Businesses Tout Pot-Friendly Policies?

You don't have to be in the pot business to be a pot-friendly small business. Maybe you're located in one of the few recreationally legal states and you want to offer your employees awesome benefits. Or maybe you're in a medicinal marijuana state and you don't feel like firing a well-regarded, quadriplegic employee who has a prescription to treat his violent muscle spasms.

Either way, if you're considering a pro-pot policy at your small business, you should be aware that you might be wading into some legally murky waters.

Private Employer, Public Pot

Normally when we examine the issue of marijuana use in the work context, it's to see whether an employer can fire an employee for smoking pot. And the answer, so far, has been a resounding yes -- even if it's off the clock, even in states with legal recreational use, and even if the employee has a prescription. And some of the same principles that allow you to fire an employee for using marijuana, regardless of state laws, can allow you to hire or retain an employee, regardless of drug use.

Nearly all employment is "at-will," meaning that employers can fire employees for any reason or no reason at all (so long as the reason isn't discriminatory or otherwise illegal). In the same vein, businesses, especially small, private businesses, are given a whole lot of legal latitude in making hiring and retention decisions. So if you learn that employees are smoking the reefer, you're free to turn a heavily-lidded blind eye.

Pro-Pot Employment Policies

But what if you're thinking of taking a less passive approach? Can you allow or encourage your staff to toke up at work? Can the company health plan cover medical marijuana? Maybe and maybe, but be careful. If you're going to let employees smoke on the job, you should probably make sure you're in a recreationally legal state and even then you need to be aware that even possession of marijuana remains a federal crime. You will also want to clear this with all of your staff -- if other employees aren't down with working through a green haze all day, you could have a lawsuit on your hands.

And when it comes to insurance plans, most national or group plans aren't going to cover medical marijuana. You could, however, choose to cover it under your own self-insurance program or make contributions to employees' health savings accounts to help defray the costs. Again, you'll want to have a clear, concise, and all-employee-encompassing policy in place before you go too gung-ho on the ganja.

Your best resource when it comes to formulating such a pot plan will be an experienced small business attorney -- you can contact one in your area today.

Related Resources: