3 Questions Employers Need To Consider When It Comes To Marijuana In The Workplace – Employment and HR



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3 Questions Employers Need To Consider When It Comes To Marijuana In The Workplace


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Haynsworth Sinkler Boyd’s Chris Gantt Sorenson and Perry MacLennan recently discussed
“Marijuana in the Workplace: To Test or Not to Test” on
the Survive HR podcast. In the podcast, Chris, Perry, Kelly Schieb
and Steve Nail debate their different opinions on the subject of
whether any form of marijuana testing makes sense for employers
regardless of whether marijuana use is legalized or not. Listen for
the reasons the four offer for and against testing in all sorts of
situations, and see where they came to a consensus.

Perry summed up the issue:

If you are going to drug test in the workplace for cause (from a
co-worker tip, an accident in the workplace, etc.), a positive test
for marijuana will not tell you a lot. If you are making
disciplinary decisions around this, you will need more than a
positive test to determine the level of impairment. You will need
more evidence; for instance, finding a joint or noticing an
employee is visibly high at work. HR professionals have to make a
determination: What type of workplace are we and how are we going
to approach this? Is a pre-employment marijuana screening
necessary? Is it something that we want to do? Regardless of which
state you are in, even in states where it’s illegal, like South
Carolina, some employers have done away with testing. If you have
safety-sensitive positions (manufacturing and construction
industries, for example), you will have the latitude to conduct
drug testing, and that is a good idea.

The highlights of the debate centered around three central
questions:

Regardless of whether marijuana is legal in your jurisdiction,
what should employers do about marijuana in the workplace?

Should employers still include marijuana on its panel in
reasonable suspicion and after accident situations? Even in states
where marijuana is legal, apply what you already know in regards to
what level is too much, similar to how you treat alcohol use under
the reasonable suspicion analysis. No one should
work while impaired, regardless of why they’re impaired. Train
managers to look for behaviors that may indicate an employee is
under the influence of marijuana in addition to alcohol or other
substances. Chris explained,

If you think in terms of reasonable suspicion (for example, an
employee comes to work under the influence of any sort of
substance) and you have reasonable suspicion the employee is under
the influence, then you test the employee to see if they’re
impaired.

If you are going to test or conduct for-cause testing or after
accident testing, how do you determine if someone is under the
influence of marijuana? Is there a general standard or cut-off as
to what an impairment level would be?

There are no limits yet for the level of THC that indicates
impairment and marijuana detection is not indicative of impairment
as it can remain in someone’s system for 72 hours up to a
month.  However, coupled with reasonable suspicion, the test
would act as an additional fact to confirm the employee is under
the influence at work, something that the ADA does not protect. The
DOT’s reasonable suspicion guidelines offer insight into what
managers should look for with regards to marijuana and can be
applied to inform employers even outside of the context of
DOT.  But it does not matter what substance the employee is
on, if you see a particular behavior and then pair it with a test,
either for reasonable suspicion or after an accident, those two
facts confirm what the employer has observed. A standard for the
level of impairment is not necessary.

For those employers considering eliminating marijuana testing
entirely, be mindful of worker’s compensation insurance
policies in case of an accident. Remember to have new hires sign an
acknowledgment of the procedures when they start, so they know
about the policies from day one.

Employers don’t want their employees to be impaired at
work. Should employers include impairment language in their
policies to make it clear that no level of impairment is okay?

Any policy outright prohibiting marijuana use in states where
marijuana is medically legal will run afoul of the Americans with
Disabilities Act. This poses an interesting quandary since federal
law bans marijuana and any use, even for medicinal purposes, is
illegal. The ADA is a federal law so you would think that outright
prohibition regardless of state law is permissible. However,
federal courts have already interpreted an outright prohibition on
marijuana use where it is approved medicinally violates the ADA if
the use is in conjunction with a prescription and the employee is
able to perform the essential functions of the job. Employers
cannot have a policy that prohibits its use at work. Instead,
approach it as you would the use of prescription drugs and whether
or not it will interfere with the ability of an employee to do
their job safely.  If you include impairment language in your
policies, you also need to include language to accommodate for
ADA.

Having a policy for reasonable suspicion and a policy for
after-accident testing streamlines everything.

Originally published 30, June 2021

Click here to listen to the entire
conversation on the Survive HR podcast.

HR Professionals – Chris and Perry’s session on
Marijuana in the Workplace kicks off the first-ever SC
SHRM virtual conference
on September 21 at 9:45-10:45. The
session will cover these topics more in-depth and provide employers
with concrete solutions to addressing the fluid legalization of
marijuana issue. 

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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