Employers in states that have legalized marijuana use may be having a tough time figuring out how to handle a worker who smoked pot the night before.
The employee may or may not still be experiencing some of the effects when they punch in for work – whether they sit at a desk, work in a kitchen or operate heavy machinery.
If you’re facing this dilemma, you’re not alone.
More than one-third of business owners with fewer than 500 employees say they are not yet prepared to manage the impact of legalized marijuana on the workplace.
While the U.S. Drug Enforcement Administration continues to consider marijuana and marijuana-related products as Schedule 1 drugs, 46 states and the District of Columbia have legalized marijuana or cannabidiol (CBD) with or without prescriptions.
That’s in part why developing appropriate policies for industries with employees operating heavy machinery, for example, can present a challenge for employers.
At the same time, many employers seem to be relaxing their policies.
In Colorado, for example, only 48 percent of companies with “well-defined” drug testing policies will fire a worker for a first-time positive test for pot, according to data collected by the Employers Council.
Companies also have been dropping marijuana from their pre-employment drug screening program in the last two years and 2 percent have stopped screening for it altogether.
So, attitudes aside, what’s the law about this say?
Colorado, like many states, has an “off-duty conduct” law, which says that employees may not be fired for engaging in legal activities on their own time.
But that’s not where things stop.
The Colorado Supreme Court several years ago found that marijuana use cannot be considered a lawful activity because it is illegal under federal law. For the protections of the off-duty conduct law to apply, the Court held that the activity must be legal under state and federal law.
In short, Colorado employees may have a legal right to use marijuana, but no protection against being fired for exercising that right.
As an employer, if you suspect an employee under the influence of marijuana caused or contributed to a workplace accident, there are a number of steps you can take to protect yourself.
It’s important to create a policy and enforce it consistently! We can’t stress this enough. Some questions to ask when setting up a company marijuana in the workplace policy include:
- When and under what circumstances will we test employees?
- What substances will we test for?
- Who will conduct the tests?
- What are the employees’ rights and responsibilities under the policy?
- What is the timeframe within which an employee must submit to a test?
- What is the process to determine a medical exception to the policy?
- What happens to the employee in the event of a failed test?
Also, document the employee’s behavior after an incident; include everything that happened in detail. If possible, collect signed witness statements. Even if the statements only confirm what happened, and don’t attest to the intoxication, they are helpful.
Finally, drive the employee to a drug-testing facility. Don’t send them on their own. Sounds ridiculous, we know, but it’s happened.