Risk Management

By Randy Boss, CRA, CRM, MWCA, SHRM-SCP

DRUGS AND WORK DON’T MIX

Your clients must implement and enforce firm policies on marijuana use

As more states pass laws that allow medical and recreational use of marijuana, employers are faced with a dilemma. Do they continue to test employees for THC, or tetrahydrocannabinol, the chemical responsible for most of marijuana’s psychological effects, or do they maintain a zero-tolerance drug policy? What do they do if their top salesperson or high-performing long-term employee tests positive for the drug? Do they fire someone who brings in 25% of their annual sales?

There is a lot of momentum to embrace the Big Marijuana industry at the same time that tobacco users are required to smoke outside; and we have an opioid crisis on our hands.

In November 2018, Michigan became the tenth state to legalize marijuana for adults 21 and older, joining Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, Washington state and Washington, D.C. The Society for Human Resource Management notes that the number of people who use marijuana in the United States is on the rise, both at home and in the workplace. Company drug testing services report more positive tests for marijuana, both in pre-employment drug screens and drug tests conducted for other reasons. The penalty for a positive test is often a refusal to hire or, for those who are already employees, discipline and possible termination.

Now that more states have passed legislation to legalize marijuana, employers will need to make sure their pre-employment drug testing policies and employee handbooks reflect the new reality.

Employers need to be aware that in a few states—such as Massachusetts and New York— protections are in place for registered medical marijuana users and may require employers to ascertain whether reasonable accommodation can be made in some circumstances. This means that if an employee in one of these states is using marijuana with a medical card, employers cannot fire him or her on that basis. If an employee is using marijuana recreationally, however, his or her job would not be protected.

The concerns about the impact of marijuana in the workplace seem to be founded in fact. The National Institute on Drug Abuse notes that the short-term effects of marijuana include impaired body movement, difficulty with thinking and problem solving, memory problems and an altered sense of time. This is a deadly combination when an employee is operating a high-powered saw or driving a tractor-trailer.

In May 2015, an article in the Journal of Occupational and Environmental Medicine concluded that although marijuana use may be reasonably safe in some controlled environments, its association with workplace accidents and injuries raises concern.

Now that more states have passed legislation to legalize marijuana, employers will need to make sure their pre-employment drug testing policies and employee handbooks reflect the new reality. It’s important for your clients to make job candidates understand that the company’s substance abuse policy can prohibit an employee from using or being under the influence of marijuana, including medical marijuana, at work. The drug policy needs to make it crystal clear that employees are prohibited from being impaired by marijuana while on the job, legal or not. Alcohol is legal, but find me an employer who says it’s okay to indulge in a six-pack while operating a crane.

The legalization of recreational marijuana opens up other areas of concern for employers. Marijuana can stay in a person’s system for 24 to 48 hours after casual use and up to a month if a person is a chronic user. Say an employee is involved in a work-related accident on a Tuesday and tests positive for marijuana because he or she had a joint while watching a football game on Sunday. This situation raises certain legal questions, like whether or not a person’s job performance is being affected by weekend activities. As long as the employee isn’t as high as the proverbial kite at work, should an employer be concerned?

Either way, businesses must protect themselves. Even Josh Hovey of the Coalition to Regulate Marijuana Like Alcohol (CRMLA) agrees, saying, “The coalition felt it was important for a business to have the right to test employees and reject or fire them for failing a drug test.” Unfortunately, some experts predict that with so many businesses already struggling to find skilled workers who can pass a drug test, challenges will increase as recreational marijuana becomes legal in more states.

With businesses already facing an opioid epidemic, we now toss marijuana into the drug testing mix. With more workers taking advantage of legalized medical marijuana, employers must now determine whether to maintain zero-tolerance drug policies or create more tolerant guidelines.

Because marijuana is still illegal at the federal level, employers don’t need a reason to fire employees. The legalization of marijuana is sure to ratchet up the number of lawsuits as employers begin to use marijuana use as a basis for either not hiring job applicants or terminating existing employees. Labor experts recommend that employers sit down with qualified candidates who fail pre-screening drug tests, even those with a legal medical marijuana card, and draft a contract, often referred to as “last chance,” that states they will be terminated if they fail any subsequent testing, either routine or after an incident. Many employers partner with employee assistance plans to help them monitor compliance with these agreements. This also would protect employers who are sued by weekend tokers.

Once the haze of marijuana smoke has dissipated, employers need to take a hard look at their pre-employment drug testing procedures and clarify how their drug policy applies when a workplace injury occurs. They also must keep their employee handbooks up to date and written in language that is clear and not subject to erroneous interpretation. For example, let employees know that the smoking area outside the building doesn’t permit partaking in anything an employee rolled on the way to work that morning.

The author

Randy Boss is a Certified Risk Architect at Ottawa Kent in Jenison, Michigan. He also is co-founder of emergeapps.com, web apps insurance agents can share with employers. Randy can be reached at rboss@ottawakent.com.