This is a summary of an excellent article at HR Morning that addresses 3 mistakes employers should avoid in the evolving cannabis law arena. We encourage you to read the article in its entirety.
Here is a summary of the major issues employers face, and how best to avoid stepping on one of those mines.
Mistake #1 – Believing marijuana is ‘legal’ and ignoring its potential impact in the workplace.
Perhaps one of the most important things to understand, is that cannabis is not legal anywhere in the United States.
Marijuana is a Schedule I controlled substance under the federal Controlled Substances Act, right along with Heroin, LSD, Ecstasy, Crystal Meth and Peyote.
If you perform federal contracts, have employees working on federal property, or have employees subject to federal regulations (e.g. interstate truck drivers or airline pilots), you have no leeway with cannabis – your employees can never possess it or have any amount in their system.
One of the biggest mistakes an employer can make, however, is believing these state laws reduce potential liability for the bad acts of a stoned employee. Cannabis impairs judgment, and this is exacerbated when someone is driving or operating machinery.
Numerous studies are showing how THC impairment is likely to significantly increase the risk of an accident on the job.[R&A Comment – We have a blog post here that documents a 20% increase in accidents after marijuana use]
The one thing that is universally true in any sort of litigation involving cannabis-fueled conduct, is that if the employer is perceived as having tolerated an employee to be high at work, even jurors will have no problem hanging the employer out to dry for contributing to the accident or misconduct.
Mistake #2 – Not keeping up with cannabis laws in your state
The reaction to cannabis’ federal status, and the risk of serious liability associated with cannabis intoxication at work, leads many employers to want to adopt a “zero tolerance” policy regarding drug testing employees (i.e. any THC in one’s system is grounds for discharge).
It is fine – everywhere – to have a policy that says employees cannot possess, use or be under the influence of THC on company property or on working time – but the “under the influence” part is subject to state law.
All of this taken together means that an employer is taking a large risk by claiming they have “zero tolerance” with respect to cannabis.
The better solution is to tell applicants (post-offer, pre-employment) that they have to pass a standard drug screen and have all testing done by a lab certified by the National Institute on Drug Abuse (NIDA).
The other two typical testing scenarios: (1) when you have “reasonable suspicion” someone is under the influence at work; or (2) after an accident where the employee’s conduct cannot be ruled out as the cause, should also be handled with care based on the applicable state law. (Random testing may also be a possibility, but do not implement such a procedure until it has been reviewed by employment counsel with good malpractice insurance.)
You also want to be very careful with employees where they may have consumed THC under the express direction of their doctor. [R&A Comment – We explain in this article why it is important to have a quailed Medical Review Officer (MRO) involved in your drug testing program]
Mistake #3 – Not updating your policies and procedures
One of the most avoidable mistakes employers can make is failing to update their policies to reflect the changing cannabis legal landscape.
It is also vitally important to train managers that any medical issues – including cannabis-related questions – are directed solely to HR. Saying the wrong thing to an employee can create liability and hard feelings.
In addition to all the legal risks above, businesses need to factor in their reputation and ability to recruit and retain employees when it comes to marijuana testing and messaging. If your business is seeking millennials and Gen-Z’ers, being perceived as intolerant or old-fashioned may deter applicants and put off existing employees. Be aware of your industry, your state and local laws, and your employee demographics; and adopt policies and procedures that are in the best interest of your business, that provide the maximum legal protection, because marijuana is here to stay, and so is the risk of employment lawsuits associated with it.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: email@example.com or the website at randisiandassociates.com