What if you could jump into your time machine and take a trip anywhere in the United States in the 1970s? Imagine telling an employer that marijuana use would be legalized in the next 40-50 years. Can you picture the disbelief that you would encounter?
Well, that day is here. Starting with California legalizing marijuana for medical use in 1996, today 11 states and Washington, D.C. have legalized recreational marijuana usage and many others allow for its medicinal use with a prescription.
This shift in the legal landscape of marijuana usage has left employers scratching their heads wondering what they should do. Where zero tolerance marijuana policies were common 10 years ago, now employers have to rethink their drug policy when it comes to marijuana use.
State conflicts with federal, but know how things work in your state
State-by-state laws fluctuate anywhere from prohibition of all cannabis, such as in Idaho, to states such as Maine that require pre-employment marijuana testing. Marijuana usage is still illegal on the federal level under the auspices of the Controlled Substance Act. But it is still important for employers to know state law, and precedents that have already been set, before taking any action regarding employees.
Unlike alcohol, where impairment is measured based on blood alcohol levels, impairment cannot be easily measured with marijuana. An acute user who is not behaviorally impaired on work days could test the same as a chronic user, who habitually uses marijuana over a long period of time. The chronic user is much more likely to exhibit behavioral cues, signaling that they are high at work, as opposed to the acute user who is not behaviorally impaired.
More employers observing, rather than testing
Because of this, many employers have shifted their focus from detection to observation. They are no longer looking at a positive drug test, which again, does not necessarily reflect behavioral impairment. Instead, they simply observe an employee’s behavior at work.
It’s important to remember that there is no state law is requiring an employer to deal with workers who are high on the job. As is the case with alcohol or any other controlled substance, if there’s reasonable suspicion, it’s still okay to test.
Employers should use a reasonable suspicion observation checklist (such as the one provided by BCN Services’ Human Resources Department) if they observe behavior leading them to believe there is an on-the-job issue. That checklist becomes even more important if there is litigation down the road. You may have heard anecdotally that “Joe” partakes in recreational use on the weekends, but that’s usually not reason enough to send Joe for a drug test. However, if Joe’s behavior lends to reasonable suspicion, then action can be taken.
Employers who are in non-safety related, or non-industrial industries have begun to loosen their pre-employment drug screening policies. Some employers fear that if they test for marijuana use, they will not be able to fill all of their open positions.
Medical marijuana use may require reasonable accommodation
There’s also the issue of reasonable accommodation. Once marijuana usage is detected from a drug screening, it may be up to the employer to provide reasonable accommodation for that employee’s need for using medical marijuana.
If there’s any doubt regarding your company’s current drug and alcohol policy or decisions, BCN Services is an invaluable resource to make sure you proceed with caution. Please contact our Human Resources Department to discuss your situation. You may contact us here.
Frank Lewandowski, HR Business Partner