Companies in states that have legalized marijuana are wrestling with how to deal with employees that use, particularly if they did so the night before and are still feeling the effects the following day.
A new survey found that one-third of business owners are not prepared for managing the effects of legalized marijuana in the workplace. The biggest issue facing employers is ensuring that workers don’t come to work under the influence, or that they don’t sneak off for a few puffs during their lunch breaks.
The problem is that it’s difficult to see if someone is under the influence if they have smoked a little bit and are slightly “buzzed.” On-the-spot drug tests won’t work because marijuana can stay in the system for 30 days or more, making it impossible to know when they used it last.
With no clear guidance, some employers have responded by relaxing their drug policies to allow for employee consumption outside the confines of the workplace, while others have kept the zero-tolerance rules in place to thwart employees who may try to use cannabis during the workday.
The biggest concern for employers is workplace safety, as well as the safety of customers and even the general public if a driving employee is using while on the clock.
When someone is under the influence their judgment is impaired and their reaction time is slowed. That could lead to workplace accidents and worker injuries. That, in turn, can result in fines by OSHA as well as higher workers’ comp rates, in addition to lost time by key employees.
If an impaired worker is operating equipment in a retail establishment and injures a customer or a vendor, you could be facing a substantial liability lawsuit.
If you have an impaired driver who causes an accident and injures or kills a third party, and/or destroys a third party’s property, you could also face a liability suit.
What you can do
First, you have to decide your business’s level of tolerance for employee marijuana use. Obviously, for workers using heavy machinery, or in other safety-sensitive jobs like drivers, it would be wise to have a no-tolerance policy in place that includes drug testing.
Whether pot is legal in your state or not, you are still free to ban marijuana use on the job, just as you can alcohol – and you can fire someone for using it on the job.
It’s important that whatever policy you put in place, it is communicated to employees through a staff meeting as well as in your employee handbook. You should inform them of the consequences of violating that policy.
For the sake of workplace safety and your overall liability exposure, you should consider restricting marijuana use to the extent permitted by law.
At the very least, you should prohibit marijuana use in the workplace, as well as marijuana impairment during work hours or in the workplace.
Your approach will depend on which state your business is located in. For example, California provides a constitutional right to privacy which restricts employers from monitoring off-duty conduct.
That said, pre-employment drug-testing is generally permitted, as long as it is conducted in a fair and consistent manner and administered to all applicants for a position within a specific job class.
After employees start working, they have a higher expectation of privacy. That means you should restrict any drug-testing to suspicion-based inquiries, like someone who appears under the influence. Random testing is highly restricted in California and should be reserved for certain safety-sensitive positions.
Remember though: There are exceptions for medical marijuana use. Most workers must be allowed to take medical pot, just as they would any other legal drug.