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Legalizing Marijuana: What's an Employer to do?

Posted By Editor, Wednesday, November 2, 2016


Contributed by Becky Barton

These days it’s difficult to avoid the election mania covered by the various media outlets. Given the major spotlight on the presidential race, you may not know that the potential decriminalization of marijuana will be on the ballot in several states.

California, Arizona, Maine, Massachusetts and Nevada will all weigh in on legalized marijuana for recreational use (also known as “adult use” and “non-medical use”) where it is currently approved for medical use only. Another 3 states (Arkansas, Florida, and North Dakota) will decide on the future of cannabis for medical use in their states.

Supporters of the ballot measures see this as a boon to the states’ economies via increased taxes and job growth for cannabusiness people. We have seen 25 states and the District of Columbia legalize marijuana in some fashion, making a continued trend of legalization highly likely.

So what does this mean for business owners and employers? Marijuana remains illegal under federal law and the state-by-state variations make this particularly confusing. For example, within the subset of those states approved for recreational use, the amount an individual can personally carry varies.  As an employer, particularly a multi-state employer, these variations can be an administrative and enforcement nightmare.

Or do they? After all, alcohol is a mind and behavior altering substance that’s been legal for over 80 years and we seem to manage that in the workplace, right? Wouldn’t this be treated similarly? Well, it depends. Many laws clearly state that employers don't have to accommodate medical marijuana use during work hours or on company property while other states require reasonable accommodations for workers with disabilities (specifically as it relates to drug testing and adverse action).

The key is to know what is required by the states in which you operate, create an employment policy that complies with state law and enforce it consistently amongst employees of similar work groups.

The Bottom Line: Work with an HR consultant or an employment law attorney to navigate these unchartered waters. They should be watching how these new laws are interpreted by the courts and have your back should your policy need updating.

 

Becky Barton is the founder of People415, a San Francisco-based Human Resource Consultancy Firm helping companies navigate every stage of their growth.

Tags:  behavior  company culture  employee  employee communication  employee health and wellness  employee relations  Employee Training  employee wellness  healthcare expenditures  hr  HR Communication  HR law  HR Legislation  Human resources management. HR Leadership  law  leadership  management  marijuana  Policies  workforce 

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Drug use tipster may be blowing smoke

Posted By Laurie A. Pehar Borsh, Thursday, December 3, 2015

With the legalization of marijuana in Oregon and Washington, many employers are seeing an uptick in positive drug tests. There is still some uncertainty among employers and employees alike about what may be acceptable and appropriate “use” and what constitutes a violation of a workplace policy. It is clear that employers still have the right to maintain a zero tolerance policy, but once you have the policy how do you enforce it? One situation that has become more frequent is a tip from a coworker or an anonymous source that an employee “smokes marijuana regularly” or even that employees are using marijuana in the workplace. The appropriate response to those tips is going to depend on your company policy. Do you have a policy that prohibits drug use either on or off the job? Does your policy say you have the right to test employees? What are the specific times (pre-employment, post-incident, random, reasonable suspicion, etc.) that you can test? Is an anonymous tip or a tip from a coworker enough to send your employee in for a reasonable suspicion drug test?


An anonymous tip or an isolated report from a coworker is not enough, on its own, to require a drug test even under a zero tolerance policy. Generally speaking, in order to require that an employee submit to a drug test you must have a policy that says you can, and the individual circumstances have to fit the reasons for drug testing that are enumerated in your policy. Most drug and alcohol policies allow an employer to test when they have “reasonable suspicion” that an employee is violating the policy. Reasonable suspicion doesn’t mean you have to be certain. But you do have to have objective, credible facts that form the basis for a suspicion prior to requiring an employee to submit to a test.


A report of drug use should prompt an investigation such as a check-in with the employee and an evaluation of whether there are other factors beyond the tip that might add up to “reasonable suspicion.” When you talk to the employee, does her performance, appearance, odor, or behavior indicate that she may be using marijuana in violation of your policy? Consider the credibility of the source of the tip; does the person making the report potentially have a grudge against the employee he or she is accusing? (For example, it’s not unusual for an employee going through a difficult divorce to be the subject of a report by a disgruntled spouse.) If you see signs that lead you to believe you may have reasonable suspicion, such as bloodshot eyes and an odor coupled with a glazed demeanor or inappropriate laughter, you should document those observations. Then ask another member of your management team if they notice anything out of the ordinary or troubling about the appearance, behavior, or performance of the employee and have them document their observations as well.


If you and another member of your management team think you have reasonable suspicion, then you should send the employee in for a drug test. Explain the factors that you have observed to the employee and give her an opportunity to explain. Beware, however, of letting the employee talk you out of the test. If her excuse is that she couldn’t sleep the night before and she is just tired, you can reply “if that’s all it is, then your test will be clean. But based on what we have seen today, we have to make sure. It’s our obligation to keep the workplace safe.”


Once you have decided to drug test an employee, it is important that you actually take the employee in to be tested or have the testing or sample collection done on-site. If it’s a reasonable suspicion test, the employee should be taken off the job until you receive the test results. In the event that the employee is clean, then the employee should be paid for the time that she missed while waiting for the results. If the employee tests positive, you should either terminate or offer a last chance agreement according to your company policies and practices.


Of course situations and workplaces all have their unique culture and challenges. If you do receive a tip of drug use, be sure to consult with your employment attorney to ensure that your response is appropriate.



About the Author

 

Lorraine Hoffman is an employment and labor attorney at Vigilant, a company headquartered in Oregon, dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve their most complex employment issues.


 

 

 

Tags:  drug testing  employee  hr  human resources  Lorraine Hoffman  marijuana  NCHRA  V  Vigilant  workplace 

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Marijuana is Legal in My State: What Should HR Professionals Do to Prepare?

Posted By Laurie A. Pehar Borsh, Wednesday, April 15, 2015
Updated: Wednesday, April 15, 2015

By Diane Buisman - Employment Attorney & Regional Director for Vigilant

 

Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form, including four states that allow for recreational use. In Alaska, adults 21 or older can now transport, buy or possess up to an ounce of marijuana and grow up to six plants.

Colorado and Washington were the first two states to allow for legalized recreational marijuana thanks to ballot measures passed in 2012.

The District of Columbia became the most recent jurisdiction to join the trend; its voter-approved measure took effect in February, legalizing possession of small amounts of marijuana.

Oregon voters approved a similar measure last fall, which will take effect on July 1, allowing adults to possess up to an ounce of marijuana in public and eight ounces in their NCHRA Connect Blog - Marijuana Drug Policies in the workplacehomes.

Many other states have passed medical marijuana laws allowing for limited use of cannabis for medical treatment, with possession limits and eligible medical conditions varying from state to state.

So what is potential impact for employers?

Human resources professionals, who don’t consider this question now, may be surprised by the variety of issues they’ll face as legalized marijuana increasingly becomes part of our national culture. Going forward, HR professionals in any state where marijuana possession and use is legal (including medicinal marijuana use), should also expect a growing number of questions from employees. Be prepared to educate employees about the company’s drug policy and how it applies to legalized marijuana. Employees need to understand that even if using marijuana is legal in their state, testing positive at work can impact their job.


New drug and alcohol policies in the workplace.


For those companies that don’t have drug policies currently in effect, preparing for legalized marijuana will take a little longer. A company needs to first decide whether implementing a drug and alcohol policy is right for their workplace, depending on their industry, the safety-sensitive nature of their work environment, and the company culture. If a company wants to move forward with implementation, they’ll need to make important policy decisions, such as which substances to ban, whether to conduct drug testing, and the consequences of violating the policy. Rolling out a new drug and alcohol policy takes time and effort, requiring communication and training for employees and managers about new rights and responsibilities. 


Employers who are already conducting drug testing should expect an increase in positive test results. According to Quest Diagnostics, a national lab that provides workplace drug testing, Colorado and Washington have seen an increase in positive drug tests in the general workforce by 20 and 23 percent respectively between 2012 and 2013.  Employers in states where marijuana has become legally available should anticipate a similar outcome.


Is a positive test result is an actual and true measurement?


Another question that has emerged for many human resources professionals is whether or not an employee who tests positive for marijuana is actually impaired. Urine drug testing is the federal government’s preferred method for testing workers in safety-sensitive positions, and at least one study has shown that cognitive impairment from marijuana use may last up to 28 days. For these reasons, many employers have “zero tolerance” policies, meaning any presence of marijuana in the system would trigger a positive test result. Zero tolerance is especially appealing for employers in safety-sensitive industries, since any possibility of impairment could jeopardize employee safety.

For example, someone who used marijuana two weeks ago may test positive, but it’s unknown whether the employee is actually impaired by that previous use. Due to this uncertainty, some employers are uncomfortable with zero tolerance policies. One Oregon manufacturer we work with employs over 200 people. The company decided that zero tolerance isn’t a good fit for their company in light of legalized marijuana. However, the company has been grappling with identifying what level of marijuana would trigger a positive test result. The company is looking for a creative way to allow leniency for marijuana use while balancing the safety-sensitive issues at play.


Without more sophisticated testing methods, employers who want to test for marijuana, but don’t want to adopt zero tolerance, are forced to make an educated guess about impairment levels. Some employers have decided to abandon drug testing altogether; we’ve seen several employers in Washington, mostly office environments, choose this route following marijuana legalization. Since safety is less of a factor for these companies, there’s less of an upside to ongoing drug testing.

 

The one-size solution doesn’t fit all.


Legalized marijuana introduces a host of new questions and challenges for HR departments, and there aren’t any one-size-fits-all solutions. Human resources professionals should be prepared to answer questions from employees, as well as evaluate the best strategy and approach to marijuana use in your workplace. If legalization has become a reality in your state or city, now is the time to review your current drug and alcohol policy and tackle these difficult decisions.

 

About the Author

 

Diane Buisman - Employment Attorney - NCHRA Connect Blog

 

Diane Buisman is an employment attorney and the regional director at Vigilant. Headquartered in Oregon, Vigilant is dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve complex employment issues such as employment law, learning and development, safety and HR best practices. Connect with Diane on Linkedin.

 

Tags:  Attorney  behavior  Blog  Buisman  employee  Employment  HR  Human Resources  Legalized  management  Marijuana  NCHRA  Policies  Vigilant  workforce  workplace 

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