No doubt it would have seemed unimaginable to any Baby Boomer coming of age in the 1960’s and early 1970’s that forty or so years later marijuana, the drug of choice, would be legal. But that is the case today in one form or another in a growing number of states throughout the country.
Whether it’s medical marijuana, decriminalization of certain amounts of marijuana, or outright legalization for recreational purposes in Oregon and Washington, indeed we live in changing times. And these are times that pose a challenge for employers who need to know how to protect the safety of their employees while integrating the new legalization into their existing drug and alcohol policies.
Here are a few thoughts:
1) Employers need to develop a specific policy on marijuana as part of their larger drug and alcohol policy. In doing so, you should make certain you fully understand the law in your state regarding the legalities of marijuana use.
2) In developing policy, employers must keep in mind that they are under no obligation to permit marijuana use at work or allow employees to be under the influence of marijuana at work despite the fact that marijuana may be legal in the state. Users of medical marijuana need not be allowed to use marijuana at work and/or be treated specially because of their status.
3) Zero-tolerance, however, may not be the best policy for your business. Consider the possible negative employee relations you might incur if someone known to be an authorized user of medical marijuana were terminated as a result of a positive drug screen based on a questionable incidence of reasonable suspicion testing.
4) Employers may want to base the decision as to whether to implement (a) a marijuana zero-tolerance policy or (b) a more lenient policy which prohibits “marijuana impairment” on the job only according to the nature of their businesses. A plant-related business in which serious safety issues exist, for example, may have more need for a zero tolerance policy than an accounting office.
5) Keep in mind the presence of THC (the active ingredient in marijuana) does not necessarily indicate someone is presently impaired. THC can often be detected for several days or even weeks after use. This may especially be true of a frequent user of medical marijuana. Review this matter carefully with the company which provides your drug tests before deciding the criteria upon which you will base a decision of impairment.
6) Continue to comply with all federal regulations which apply to your business which may impose certain requirements regarding marijuana since marijuana remains illegal under federal law. Make sure any federal requirements are integrated into your policy.
7) Train managers in the proper way to implement the policy and fully communicate the policy to employees. Legalization of marijuana may give rise to certain unfounded employee expectations that are inconsistent with your policy.
8) Follow your policies consistently.
9) Consider having an employment attorney review the policy. This is a new and developing area of law and any uncertainties should be referred to qualified counsel.
As marijuana continues to gain acceptance and more states join the legalization trend, the situation will become even more complicated for employers, especially those with multi-state operations. It’s more than time for you to take a careful look at the laws in your state, whether Michigan or elsewhere, and make some important policy decisions.
In fact, it’s high time.