Cannabis is now legal: How do employers address this issue?

After cannabis legalization was passed with ambiguities, additional legislature signed into effect late last year enabled employers to maintain a zero-tolerance drug-free policy that prohibits the use or possession of marijuana in the workplace. It’s a blessing for many employers. The original legalization language made zero-tolerance enforceability hazy. This clarification allows employers to maintain a zero-tolerance drug-free policy and workplace, but is this the stance all employers want to take?

A zero-tolerance/drug-free policy is great. However, some employers may have a hard time finding employees. Cannabis positive test results could eliminate their labor pool. These employers may not want to enforce a zero-tolerance policy or complete pre-employment drug testing for cannabis.

Instead of a zero-tolerance policy, these employers should develop a no “under the influence” while at work policy. Like with alcohol, many employers prohibit alcohol while on the job and they do not care about an employee enjoying a frosty beverage while off duty. Similarly, employers may have the same viewpoint of cannabis. Nevertheless,  company policy and handbooks should still address cannabis: under the influence of cannabis and on the job = prohibited.

Consequently, “use” vs “under the influence” becomes the issue of debate for employers considering this approach. Currently, there is no technology that measures impairment. Nothing like an alcohol breathalyzer. A positive test result for cannabis confirms an individual’s “use”. A positive test result could be from “use” that was weeks ago. This necessitates management observations, documentation, and drug testing as vital parts to having a strong case for disciplining or terminating an employee believed to be under the influence. Otherwise, a discrimination case brought by the employee could ensue, claiming:

1. He or she was not in fact impaired at work;
2. A positive test result alone cannot prove impairment (today’s technology is not there) and
3. The employer acted based solely on the test result and was lacking a good faith belief regarding the employee’s impairment.

Employers need evidence beyond drug test results: such as eyewitness observations of the employee’s using or ingesting cannabis at work, slurred speech, impaired motor skills, unusual behavior, negligence or carelessness in the operation of machinery, or the employee’s disregard for their safety or that of others. It is a must to train managers on how to recognize if someone is under the influence to have a strong case in court. In addition, employers should relay to the employee the specifics of those observations and give him or her an opportunity to admit, deny, or explain the behavior.

Things an employer can do now:

1. First and foremost, consult with your attorney. I am not an attorney.
2. With your attorney, bring your company drug and alcohol policy up to date. Decide what stance you want your company to take: zero-tolerance or something more middle of the road? Confirm company alcohol and drug policies jive with the law and are nondiscriminatory.
3. Keep copies of the policy, signed by each employee, in their personnel records. It is a good idea to communicate and reiterate company policy frequently to avoid issues down the road.
4. Work with a consultant to train management-level employees on the signs of impairment

Only time will tell how the courts will decide on this all. If you would like templates – send an email to nick@konen.com and I will be happy to dialog and share documents that may help.

Tip: Don’t let an impaired employee drive to a testing facility. Get them an uber or drive them yourself. You’re going to look silly in court when you tell the judge you thought they were impaired and then had them drive to the testing facility. Even worse what if the employee caused an accident?

This analysis is lacking legal review. A business using union workers should consider the collective bargaining agreements in crafting their drug and alcohol policy. Likewise, medical marijuana presents another set of challenges for employers.