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Weed in the Workplace (Part 2)

Sifting through confusing laws to create workable policies

NEW YORK — Illicit drugs are increasing in the workplace, and marijuana is leading the way.

What should employers do?

The answer has become more complicated with the growing number of states legalizing cannabis for medical and recreational use. Should drug tests even include marijuana anymore? If they do, and evidence of marijuana use pops up, should employees be penalized?

And further: Do employers have to accommodate for the medical use of marijuana under the federal Americans with Disabilities Act or state human rights laws?

CONFUSING LAWS

Two things are certain: In every state it is allowable to have a policy that prohibits the use of marijuana on the job and prohibits an employee from being impaired while on the job, says Faye Caldwell, managing partner of Caldwell Everson PLLC, a Houston-based employment law firm specializing in workplace drug testing. But beyond that common framework, variety abounds.

“Some state marijuana laws are more favorable toward employers, and others are more favorable toward employees,” says Joe Reilly, president of his own drug testing consulting firm in Melbourne, Florida. “For example, in some states you cannot discriminate against workers in non-safety sensitive positions who need marijuana for medical reasons. In such cases, allowing offsite smoking might be a workable accommodation.

“In other states you may be allowed to terminate a worker for medical use of marijuana, even if he or she is not in a safety sensitive position.”

Furthermore, some laws seem complex.

“In Nevada, the law says that employers cannot refuse to hire someone who is using marijuana legally in the state,” says Dr. Donna R. Smith, regulatory compliance officer in the Tampa Bay office of Workforce QA, a nationwide third-party administrator of drug free workplace programs.

“On the other hand, the same law states that once the employee is hired the employer can test for drugs and terminate for positive results if the employer has announced that no marijuana use by employees will be tolerated.”

Another: “In Illinois, the statute says that employers can have zero tolerance policies for marijuana use and can test for marijuana,” says Smith.

“But employers cannot take any action against employees unless it can be proven they used the marijuana on company property while on duty or were impaired by marijuana use while on duty or used marijuana while on a call to perform customer services.”

Legal confusion can often be mitigated by case law—that vast body of rules arising from actions in the courts of the land for every nook and cranny of the legal universe. Unfortunately, there is little help from this channel when it comes to marijuana use.

Says Caldwell: “Because the laws are so new, there is not a lot of fill-in detail that might come from a history of court cases or other regulatory action.”

Employers at one time could fall back on a general appeal to the federal ban on marijuana, figuring it trumps state law. No longer.

“The fact that marijuana use is federally illegal, as a criminal matter, does not mean that states cannot legislate employment status,” says Caldwell. “Employment is generally a state matter.”

Employers also need to be aware that some municipalities have passed laws about marijuana. A new law in New York City states that you cannot test for marijuana usage except for safety sensitive positions. The law is scheduled to take effect on May 10, 2020.

WORKABLE POLICIES

If employers must deal with a patchwork of state and city laws, the end result is often a confusion that causes delays in formulating and implementing workplace drug policies.

“Business leaders have not really been talking about this topic as they should,” says Reilly. Delay can be costly.

“Companies that do not invest the required time and effort to adjust their workplace policies end up making hasty employment decisions. And those often lead to lawsuits. Maybe they get sued, for example, for terminating or denying employment to someone who fails a marijuana drug test.”

So how do you design policies that create safe workplaces while protecting your business from lawsuits?

“I encourage employers to seek legal counsel,” says Reilly. “Then decide how the business’ current workplace policies need to change to conform to state laws.”

Reilly points out some common areas: “Suppose your existing policy calls for termination when an employee fails a drug test. Should you change the policy to allow exceptions for legitimate marijuana medical use? And what if the employee is in a safety sensitive position, such as operating a forklift or working on building roofs or working with children?

“You cannot allow people to work in such positions while under the influence of marijuana. Will you terminate them or accommodate by moving them to safer positions when possible?”

The answers to all of those questions must conform to state law. The specifics about current and changing laws are important, but so is a sensitivity to larger issues that can impact policy decisions.

“To come up with workable policies, employers need to evaluate the nature of their workforce, the presence of safety-sensitive work positions, and the availability of prospective employees,” says Caldwell.

“The last factor can be of particular importance given the greater number of people using marijuana and the low unemployment numbers in many areas of the country. The employer with too restrictive policies may not be able to hire enough otherwise qualified applicants to fill the available jobs.”

The solution can often involve balancing safety with liability.

“Employers need to reach some sort of balance between the creation of a safe workplace and the risk of litigation,” says Caldwell. “Reaching that balance can be difficult.

“For example, an employer may be tempted to state that accommodation for marijuana use will only be provided to the extent mandated by law. However, that employer needs to not only look at marijuana laws, but also consider the disability and human rights laws that may provide protection in a given state.”

Miss Part 1 on the impact of weed in the workplace? Click HERE to read it. Check back Thursday for the conclusion on testing, employee communication and insurance rates.