Welcome to AccelPro Employment Law, where we provide interviews and products to accelerate your professional development. Today we’re featuring a conversation about cannabis and the workplace. Our guest is Narcisa Przulj, a partner at Sandberg Phoenix who counsels employers as they wrestle with these changing laws.
Cannabis law is an emerging field in employment law. Marijuana is now legal for recreational use in more than 20 states, and that number will continue to grow.
Employers face the complicated proposition that a substance that was illegal throughout our country’s history is now legal. What does that mean for the workplace? Should employers test for it in states where recreational use is legal? What does the law say about jobs with safety concerns?
Przulj explains the perils of testing, the mitigating factors of safety and government contracts, and the importance of having consistent policies. The episode transcript and supplemental materials are available below.
Narcisa Przulj’s Sandberg Phoenix profile.
Baugher, David. (2019, August 15). Narcisa Przulij, Sandberg Phoenix. Missouri Lawyers Media.
I. AN EMERGING AND CHANGING FIELD
Matt Crossman, Host: My first question is about what we should call what we’re going to talk about. You call it cannabis law and not pot law, weed law or marijuana law. Is that purely semantics or is there a reason for calling it that?
Narcisa Przulj: There’s absolutely a reason, and I’m glad you asked. When I first got into this area of the law, I noticed both the use of the word cannabis, which I wasn’t familiar with, and also a bit of a push for it. There are a number of reasons for this.
Cannabis is the actual name of the plant. When medical use of marijuana first became legalized, there was a push to get away from all of the ideas that we have about pot or weed and start talking about the plant so that we can focus on the benefits of that medical usage.
And then there’s also the history of the word marijuana. In the 20th century, it invoked a bit of fear mongering. There was a lot of rhetoric around the prohibition of marijuana. And so I just decided that cannabis was a good word to use if I was going to be in the space.
MC: You’ve given a lot of talks on this, and I love the title —“Up in Smoke”— that cracked me up. You told me your talks are always sold out. That speaks to the interest in this topic. I imagine you get a lot of questions at these events. What kind of questions do you get from clients and perspective clients?
NP: I always open these presentations with, “Can you even believe we’re here?” Because five years ago, I would not have believed I’d be talking about this. So I would say that I think we’re all—clients and practitioners included—just trying to catch up and understand the times and then wrap our heads around it, which I’ve been doing for the last five years.
I think clients have concerns over understanding the law because there are a lot of confusing parts to it. There are a lot of questions about drug testing. Should we be testing for cannabis right now?
It brings up the broader conversation, too: What drugs should we be testing for, if at all? And then there’s also a lot of concerns about the differences between safety-sensitive positions and somebody sitting at a desk.
There are a lot of questions, probably more than in anything I’ve dealt with. And it’s one of the first times in my career that I’ve truly nerded out. Because there are so many different issues.
II. THE LEGAL MINEFIELD OF TESTING
MC: In your talks, you note several cautions about testing for employers. The first is who they give the tests to. Explain your concerns there and the advice that you give to employees on this issue.
NP: Absolutely. While it is legal if you’re over the age of 21 to privately consume cannabis and related products, employers can prohibit employees from reporting to work under the influence and from using cannabis at work or during work time. That’s where we start.
The first issue is who do you give these tests to? That has to do with making sure you have a clear policy on how you’re testing and making sure that you’re not letting individual supervisors make decisions: One supervisor doesn’t care about it at all and doesn’t test anyone ever, while another supervisor is terrified of people smoking pot and coming to work high and starts testing everyone.
I like to use this example: I was surprised to find out that there are moms at my kid’s middle school who are white, upper middle class, and they happen to use cannabis for one reason or another. So you might not be thinking about testing moms. On the other hand, are you going to be targeting your African-American men and women or young people, say, 25-year-olds?
There’s so much involved in how we were socialized about drugs, myself included. And of course there’s the issue of historical drug laws disproportionately affecting minorities and people of color. This could become a really serious issue at work if people aren’t paying attention.
MC: Is the way to avoid that to be consistent, either one way or another? Either be stringent or not stringent and don’t treat the people who work on the dock, if I may use a stereotype, differently than the people who work in accounting.
NP: There are a couple of different issues there, which have to do with safety and what laws apply. But the issue would be to treat everybody the same and fairly. I think training there is really important.
One of the things I say to clients who might want to test is, “Well, hold on. This is now a legal substance that people can use in their free time, and we all have a right to privacy. You’re certainly not running around breathalyzing everybody at work.” So that’s what I’ve been trying to use as an example, to look at both similarities and differences regarding alcohol. Alcohol is a drug, it’s a legal substance that we use legally in our free time. Try to treat marijuana like alcohol in some ways.
MC: You have a second concern, and that is what a positive test actually shows. In your presentation, you call it a curveball. What do you mean by that?
NP: So this is the biggest part, and I think what’s going to be the biggest source of confusion. When we test for something like alcohol, we’re testing for what has been considered a legal limit of impairment, or we’re just testing for the presence of alcohol.
So if I ingest alcohol and I get tested, it’s going to be in my system. If my work prohibits drinking and working, that’s a very clear-cut issue: I’ve flunked the test for alcohol and therefore I’ve violated some rule.
Cannabis is different. You can smoke a joint or eat an edible or have a hit or two on a Friday night in your off time. It’s perfectly legal, just like somebody else may have a gin and tonic. If you are subjected to a cannabis test two days later, three days later, five days later, it will be in your system.
Now you have a positive test for cannabis that says absolutely nothing about whether you were impaired at the time the test was taken or whether you got high before work or during work. Without other evidence of impairment or it being a situation where there’s an accident or an injury, what can you do with a positive test? Should you really even be testing and what does a positive test mean?
So it’s a quite serious and really interesting moment in time.
MC: Are there answers to those questions that you just asked? So let’s say I run an engineering firm and I give an engineer a test and it shows that at some point in the past, he has smoked pot. There’s no safety issue, nothing like that. It just shows that he has done something perfectly legal. Can I do anything about it if I’m his boss?
NP: You always can. It doesn’t mean it’s the right thing to do or the legal thing to do.
This is pretty complicated. Let’s say it’s a purely private environment. The question will first be, should you test and when should you test? If you’re drug testing at hire, should you be really testing for pot if pot is legal in your state?
And then the question is, if you tested a current employee, what should you do with it? I would say that an employer would be advised to do nothing about that test and take no action unless there was objective evidence that the person was high at work.
The test doesn’t tell you anything. You really need some other reason to test, outside of the Department of Transportation, which is a completely different environment, or some sort of a government contract.
You should not assume anything on that positive test, because then you might be getting into all sorts of discrimination and privacy issues.
MC: Safety is an obvious issue here. You’ve mentioned it a couple times. What advice do you have for companies about how to frame this issue for the jobs that they have people do in a safety context related to cannabis and employment law?
NP: My advice would be to just be really thoughtful about looking at their workforce and what’s applicable. For example, if you’ve got drivers who have CDLs, that’s governed by the Department of Transportation. The state law really doesn’t apply.
Do you want to have separate policies for your safety-sensitive positions versus your office workers? I would just say you need to clearly understand what laws apply and what they say and be clear about what kind of policy you want to have based upon the applicable issues and laws.
[If you’d like to read this transcript on the web, click here.]
III. COMPLICATED LAW MEETS CHANGING SOCIAL NORMS
MC: You said something interesting earlier that there is more going on in this particular issue than anything you’ve ever dealt with. We have social norms, medicinal uses, laws that differ from state to state. I’m sure there are HR executives who are thinking, “how am I supposed to keep up with this?” What advice do you give them on policies to enact?
NP: I think there are a lot of really wonderful human resources organizations that do a lot of programming. I would attend those events, attend legal talks like the ones that I give and my colleagues give.
I will also say, there’s a reason why I have a job in this day and age: Because it’s really complicated. So I think it’s always important to have a legal partner to flush these issues. For example, where do your employees live versus where do they work? Do they work from home? I really think it’s important to partner up when you can or get as much information from lawyers as you can.
MC: In your talks on this topic, you list 21 states, including Missouri, where your office is, and Illinois, which I’m pretty sure you can see from your office, where recreational use is now legal in both states. In Missouri, the law is relatively new. It seems safe to say that more states are on the way. Do you agree with that? How is that going to change it even more?
NP: So there are now a number of not just recreational usage allowed states and territories, but there’s also about 37 states right now where medicinal use is allowed. So that’s a pretty significant portion.
It’s legal in Missouri now. But a couple of years ago, you could have an employee in Missouri who could go to Illinois on Friday night and do something perfectly legal and then come to work on Monday and be subject to Missouri’s laws. I would say that absolutely there are going to be more and more states that are going to legalize it for recreational use, not just medicinal.
MC: There’s a distinction between where you live and where you work. What kind of issues do employers face in that realm?
NP: That’s always a really interesting issue. It’s full of pitfalls, right? Especially during the pandemic where we had a lot of people working from home.
One of the things I have been working on a lot with clients is the question of, if people are working from home, where are they working from? Because you may have an employee in a completely different state in which you don’t have a workforce and for which you don’t have a handbook. So that’s something that we’ve all become more aware of, both clients and practitioners since the pandemic especially and in recent years. The laws that generally apply are the laws of the state in which you work.
MC: Another quote I want to read back to you: “I would not have believed we’d be talking about this five years ago.” Is there a moment in talking about this where you thought, “How did I get here, that this is the legal issue that I’m talking about?” Because it is funny to be talking about this in such detail.
NP: Absolutely. And just to give an example of the gravity of it, when this first started, there was this entire discussion in the legal community of, should we even be working in this field? Is it illegal for us to be working in this field?
I certainly had many moments where I grappled with how I was raised and what I was taught about weed or pot or cannabis. So it’s just been fascinating to help set policy on something that is both perilous and interesting and novel.
It’s been incredibly rewarding and wonderful just to get to figure it out myself and then get to help my clients who are all different, right? They have different perspectives, different approaches. I try to educate them on it and help them decide what’s best for them while also trying to be a thoughtful citizen. So it’s been an incredible ride for me professionally to get to work in this space.
MC: I love what you said there about the differences between employers, and that leads me to another question along these lines. I have a good friend who works in a company of about 40 people. He told me that two separate people, including the president of the company, told him, “I bet you that of the 40 people who work here, 40 of us smoke pot and you’re the only one who doesn’t.”
NP: That’s amazing.
MC: And then I think of bosses that I’ve had who would throw a fit if it was even the reverse—if one out of 40 smoked pot. That makes me think there’s a huge cultural divide going on. What is the attorney’s role in advising one company president who confesses to his employees that he smokes pot and the other one that thinks it’s a sin?
NP: That is an incredible question that I could probably go on and on forever about.
I’m supposed to be impartial, right? My job is to educate my clients in all aspects of that issue. So I do have clients who want to drug test because drugs are really important to them, they want to drug test at hire, they want to drug test randomly, they want to drug test every which way you can.
And then I have clients who are more laid back. So I approach it from a kind of a complete education. I approach it from, well, what makes sense for your business? And then I also approach it from, what is your cultural view of this?
I have been surprised by how many clients have already thought this through. It’s been an employee-favorable job market. Employers are worried about attracting employees, and so they want to have perks and benefits, and they don’t want to seem like they’re too conservative.
So it has actually been really interesting how a client may be conservative in their own personal view, but for business reasons they’ve decided they’re going to take this approach or that approach.
IV. FLEEING WAR, NERDING OUT AND FINDING YOUR VOICE
MC: Now I want to ask you questions about how you arrived at this point in your career. Let’s go back to when you were 13. You’re in Sarajevo in Bosnia and Herzegovina. How did you come to live in St. Louis?
NP: We had a civil war in the 1990s in the Balkans. We really needed to get out. My mom had a cousin at Washington University in St. Louis studying engineering. We ended up moving here when I was 14, in 1996. There’s an international institute here, and so we were able to get refugee status and move here as refugees.
MC: You started practicing employment law in 2007. I don’t know if this is the topic that interests you the most, but you used words like “perilous, novel, interesting, fascinating. Five years ago, I wouldn’t have believed we would be talking about all this.” What about this particular issue gets you so excited?
NP: I’m a passionate person to begin with.
To be frank, there’s a lot more money in, for example, litigation and defending lawsuits, and it’s a lot easier to make a living that way. But this issue is one about good business practices and policies and helping my clients with their everyday operations.
It’s about making a difference just in terms of how we treat people and what’s important and what kind of society we want to live in.
I can have this dialogue with my clients in real time and help them make decisions and decide how to treat their workforce and then be a business partner in that sense.
Because of all of these issues with the law itself and the subject matter, there’s a lot more nuances, there’s a lot more gray area than on a lot of other things. So it just happens to be interesting and rewarding and something I can nerd out on because it does require some thought and skill and a lot of research and a lot of broader knowledge about employment law and the workplace.
MC: You used an expression that has come up in several of the conversations that we’ve had about employment law, and that is a focus on how we treat people. That thread runs through all of employment law. Why is that important to you?
NP: God, I love these questions. When you start practicing, private practice is incredibly difficult. You’re just trying to stay on top of all the people that you’re trying to get work done for, trying to figure out what’s going on. It’s just very difficult. It took me a really long time to find my own voice among all of that.
I have really enjoyed the ability to try to bring humanity into my own practice and to try and find some middle ground between all the confusion and the stress of trying to have law apply to how we treat people at work.
And I think at the end of the day, how you move through the world and show kindness and how you treat people is what life is all about.
MC: Wow. You said it took you a long time to find your voice. How did you find it, and what advice do you have for that young or mid-career lawyer out there who’s thinking, “I haven’t found mine yet either”?
NP: I would say practicing for a long period of time, becoming confident that I know what I’m talking about. When you’re always trying to make other people happy or you’re doing work for other lawyers, it’s hard to understand what your position would be or what you know or don’t know.
I think it’s just becoming comfortable with your own knowledge, and it does take some time. We used to say that it would take five years just to have an understanding of what’s going on and be more confident and have the time to also figure all of this out.
I think it really does help that I love my firm. I don’t know that I would be in private practice still if I wasn’t here because it is difficult. And so I think it’s being somewhere where you’re allowed to advance on skill and hard work, even if you’re not the quintessential lawyer. And then I think it’s just about developing self-confidence over time.
MC: I’ve been a journalist for a very long time, and occasionally students or young people will say, “how do you get to the point where you can write a great story.” And I say, “the way to write one great story is first you have to write 500 bad ones and learn.”
And I hesitate to phrase the question that way because I don’t mean you’re going to screw up 500 cases before you find your voice. But I think a young attorney needs to understand you’re not going to come in and win 47 verdicts in a row. That’s just not the way the world works.
NP: Oh, absolutely. And I will say, screwing up is a little bit different in our profession. That’s the reason why it takes a while to get your voice.
But what we spend most of our time in the beginning doing is trying not to screw up, because a lot is at stake. You do make mistakes. And I think that I have become a lot more laid back about simple things, compared to how I was trained and what the legal environment was like when I first started.
Everybody makes mistakes. Most mistakes can be fixed. I think the reason why it takes so long to find your voice is because you’re just trying not to mess up and commit malpractice or make somebody really important mad.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on March 28, 2023.
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