Both employers and employees have continued to grapple with the role of cannabis in the workplace as Rhode Island’s recreational market continues to develop.
“We’ve had both employees call us saying, ‘What do I do? I got caught’ and employers say, ‘I have my policy, and this is what I did. I just want to check and make sure that we’ve done OK,’ ” said Kelly Wishart, chief operating officer of Coastline EAP, an employee assistance program.
This confusion is caused by a lack of clarity about both the law and employers’ individual policies, said Wishart, who spoke during a five-person panel discussion at Providence Business News’ 2023 The Business of Cannabis Summit. The discussion was focused on building Rhode Island’s cannabis industry and was one of two panels that took place at the Providence Marriott on Sept. 7.
The Rhode Island Cannabis Act, which was passed in May 2022, legalized recreational cannabis use for people over 21. The law also gave employers the ability to prohibit an employee’s “possession of cannabis, or being under the influence of cannabis, in any workplace or the use of cannabis in any other location while an employee is performing work, including remote work.”
There are exceptions. Employers can prohibit off-duty cannabis for certain employees, including people under certain collective bargaining agreements and those working for federal contractors.
Also, if an employee’s position is considered “hazardous, dangerous or essential to public welfare and safety,” their employers can adopt policies that prohibit cannabis use within 24 hours of a scheduled shift. But this can cause complications for those with unpredictable schedules such as emergency responders, said panelist Benjamin Rackliffe, partner at Pannone Lopes Devereaux and O’Gara LLC.
“There are some questions that are raised. If there’s an emergency or there’s a fire, and fire departments are called in from different towns when they weren’t scheduled,” Rackliffe said.
Companies with commercial drivers have also been strained by these drug policies, Wishart said. This is because drivers are subject to random drug screenings, but an employee can test positive long after they’re no longer considered under the influence. But still, Wishart said, employees who test positive are required to take time away from work to undergo assessments, leaving companies short-staffed for weeks.
“The employer now is without a driver. So, the impact on that employer could be significant if one or two of their drivers have been using recreationally together outside the office and they both test positive,” Wishart said. “That employer is out ... drivers for anywhere from three to four to six weeks.”
Without this test to determine if someone is under the influence of cannabis while working or a state standard of intoxication, Rackliffe recommended employers keep detailed records about any drug-related incidents.
Panelists also agreed employers should focus on performance quality when determining whether to reprimand an employee.
“If someone comes to work and they’re high, their work is going to suffer. That’s regardless of industry because if you’re impaired, you’re impaired,” Wishart said. “I don’t think there needs to be a state standard for employers to say this isn’t acceptable.”
Both medical and recreational cannabis businesses have also continued to face challenges related to financing, said Kristyn M. Glennon, first vice president and Bank Secrecy Act/anti-money laundering officer of BayCoast Bank.
Glennon said banks such as BayCoast that provided some of the first lending opportunities are now hitting the limit of what they can provide because demand was high early on, and they only had a certain amount of funds available.
“Private financers take advantage of the situation, I think, and really try to gouge those businesses with really high interest rates,” Glennon said.
Drew Richards, director of Marcum LLP, also said recreational and medical cannabis businesses deal with similar tax structure obstacles.
Rhode Island still conforms to the Internal Revenue Code section 280E, which prohibits cannabis companies from deducting certain business expenses because marijuana is considered a Schedule I drug. Richards said this not only causes a financial burden for cannabis businesses but also makes it more difficult to compare Rhode Island’s market with surrounding states that have “decoupled” from 280E, such as Massachusetts and Connecticut.
Rep. Scott A. Slater, D-Providence, said he proposed legislation earlier this year that would “decouple” Rhode Island from 280E. The bill failed to get out of the House Finance Committee.
Though Slater agreed with fellow panelists that the state has been sluggish in launching its recreational market, he praised those who are working to ensure Rhode Islanders have safe access to cannabis.
“It was a little slow for me because I’ve been pushing this legislation,” Slater said. “But I’m appreciative of the efforts that are going on now to make sure that testing is in a good place and that patients and other adult users are getting safe access to cannabis because it will help many people.”