Marijuana in the workplace is all the talk lately. Employers are justifiably concerned about their predicament. On the one hand, you have state legislatures continuing to pass bills that legalize medical marijuana and recreational marijuana. And, on the other hand employers are concerned about the safety of their workplace and their employees and members of the public.Recently Tamara Lytle penned an article for the Society for Human Resource Management (SHRM) addressing the issue. The article is available here for SHRM members.
She writes that employers have a right to implement a drug-free workplace policy. We concur but would take it a step further. Employers not only have a right but a responsibility to remove employees who are positive for illegal drugs and are operating in safety sensitive positions or jobs where their impairment could cause injury to members of the workforce and the general public. Termination is an option but if the employee is an otherwise productive employee it makes business sense to refer to an EAP program.
JOB DESCRIPTIONS and DRUG TESTING
Many employers have not taken the time to establish a link between a job’s essential functions and the importance of having the person in that job not test positive. We have a blog post about the importance of job descriptions here.
Job descriptions are important because in the drug testing arena job descriptions establish a link between the job’s essential functions and why your firm’s policy of unacceptable behavior can include evidence of a positive drug test for alcohol and illegal drugs. The job description process also allows identification of safety-sensitive positions. Safety-sensitive positions have associated activities that could threaten or harm members of the public and work associates if conducted by someone under the influence of drugs or alcohol.
SIMILARITY BETWEEN MARIJUANA AND ALCOHOL
So now, marijuana is legal in many states. We wrote
about the attitude that employers should take toward legal marijuana i.e. treat it like alcohol. An employer doesn’t have to tolerate a drunk employee on the job. We think it is perfectly legitimate to have the same attitude about marijuana as you do about alcohol. This attitude is particularly important if the individual is in a safety-sensitive position i.e. operates machinery, or drives a vehicle. It is appropriate to have the same attitude about marijuana, even if you are in a state with legalized marijuana laws.
IS IT REALLY THAT DIFFICULT GIVEN THE ALTERNATIVE
The author of the article quotes Lauraine Bifulco, president and CEO of Vantaggio HR Ltd., a human-resources consulting firm in Orange County, Calif. As saying “From an HR perspective, it’s…..more complicated’ Every day we turn around and find out there’s a state or city that legalizes some form of marijuana use.
While stating how difficult the legal environment, the author mentions how potentially harmful people under the influence can be. She writes “Testing can provide benefits by removing those under the influence who may pose safety risks or hurt productivity. Individuals who test positive for marijuana have 55 percent more industrial accidents according to a study published by C. Zwerling, J. Ryan and E.J. Orav in JAMA: The Journal of the American Medical Association, as well as 85 percent more injuries and 75 percent more absenteeism.”
We agree there are immense benefits that derive from testing, as previously listed. But we question why articles such as this have a headline that scares and then, in the body of the article, state why testing is important.
THE DANGER
We have several blog posts that list the dangers of allowing employees to drive while using marijuana.https://www.preemploymentscreen.com/drug-alcohol-abuse-significant-factors-fatal-vehicle-crashes-employers/ https://www.preemploymentscreen.com/here-is-one-more-reason/
We are somewhat incredulous at a statement included in the article that states ““What companies really wrestle with is the quality of the drug test and what [the results] mean,” says Eric B. Meyer, an employment lawyer at Fisher Broyles in Philadelphia. “Just because a drug test comes back and is positive for THC,” he says, “doesn’t mean the individual was high at the time of the test.”
THE DRUG TEST METHOD
Any drug test that is laboratory based is a “quality” drug test. If you are using one of those instant drug tests, you should be aware of applicable law governing its use. Maryland, for example, has very strict requirements for individuals interpreting the results of “preliminary screening devices”
James P. Randisi, President of Randisi & Associates, Inc., has since 1995 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at www.randisiandassociates.com. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel.
