15 June 2016
Derrek Perkins writes for Associations Now.com on the subject of HR, marijuana testing and employment law..
As more states legalize medical and recreational use of marijuana, employers are finding themselves in unfamiliar staff-management territory. HR and legal experts suggest that employers carefully consider how and when to apply drug-use policies.
With marijuana use gaining acceptance across the country, workplace leaders are suddenly facing a sticky question: Does the rise of legal cannabis necessitate a reexamination of office drug-use policies?
So far, four states and Washington, DC, allow for the recreational use of marijuana. Others have decriminalized possession of cannabis or permit it for medical use—including Ohio, where a bill legalizing medical use was signed into law Wednesday by Gov. John Kasich. Trade groups for producers, advocates, and retailers are springing up as more and more localities loosen restrictions and business begins to take off.
If you don’t have it in your policy that you could test, you can’t just arbitrarily send Bill or Betty off for a drug test today because you kind of think they’re a little bit wobbly.
Employers have been examining the legalities of marijuana use since decriminalization efforts began. That interest has grown with each new state considering approving use of cannabis in some form, said Edward Yost, who specializes in employee relations for the Society for Human Resource Management (SHRM). Association leaders, too, are concerned. Financial Executives International, for example, hosted a panel discussion on the topic at their annual summit in May.
Marijuana remains illegal under federal law, and employers do not have to tolerate use among their employees in most circumstances, said Yost. But the situation can get tricky for workplaces that regularly conduct drug testing—or those considering it.
“It’s going to be important to outline and inform employees in advance of what your testing possibilities are,” Yost said. “If you don’t have it in your policy that you could test, you can’t just arbitrarily send Bill or Betty off for a drug test today because you kind of think they’re a little bit wobbly.”
Then there’s the question of whether to adopt a zero-tolerance policy, which Yost warns against implementing lightly. Doing so leaves employers hidebound regardless of potential mitigating circumstances.
And marijuana use can lead to a positive drug test days after consumption.
For example, what if an otherwise stellar employee tests positive during a random test (not one given under suspicion of on-the-job intoxication)? The employer could excuse the incident, but that puts management in a bad position—and potentially in legal trouble—if another employee fails a similar test, Yost warned. The key is to adopt a policy and enforce it consistently.
“Can exceptions be made? It’s possible, but I also would not paint myself into a corner by having a zero-tolerance policy if I wasn’t willing to lose my best employee,” Yost said.
The issue is even murkier with medical usage. Finding out if an employee has been certified to use marijuana to offset ailments from, say, cancer treatment should come before termination, said Rachel Atterberry, a Chicago-based attorney who specializes in employment law. That’s because the terminated employee potentially could accuse the employer of firing him or her over a health problem or disability, she said.
Yost advises caution in determining whether an employee can use medical marijuana following a failed drug test. Given the sensitivities around prying into an employee’s medical history, he would “get a labor lawyer involved before making that call.”
SHRM has many resources on the subject for employers, including sample policies, Yost said, adding that there are a lot of “layers to this onion.”