For HR departments, it was once-unthinkable: Deleting marijuana from the list of drugs in workplace drug-testing programs.
Not only is it a public-safety issue in vehicle traffic, it’s a quandary for workplace safety.
To circumvent lawmakers in state legislatures, a majority of states have legalized pot use via ballot initiatives from grassroots petitions.
Such states have either legalized the sale and use of recreational marijuana or they have decriminalized the possession and use of pot.
Colorado case study
Starting in 2014, Colorado has been a leader in legalizing the use of pot.
However, a report by the Colorado Department of Transportation indicated traffic fatalities increased 24 percent in the ensuing three years after legalizing pot.
Strangely, the report did not cite marijuana as a cause, but it did indicate that Colorado had an increase in population.
The report also said: “The rise in fatalities is part of a national trend. Fatalities are up nationally by about 8 percent.”
So let’s connect the dots. Since legalizing pot, Colorado’s dramatic increase in traffic fatalities is 300 percent higher than the nation as a whole.
Handbook policies
Hmm. So what should be the handbook policies of companies given the public’s acceptance and the growing legalization of pot use vis-à-vis public safety issues?
While it’s a good idea to revisit workplace policies, you probably don’t have to make changes as you can still tell employees they cannot use pot on the job, can’t bring it to work, and they cannot be impaired while working.
As for testing, marijuana stays in a person’s system for a long time because it’s metabolized differently than alcohol. Even if a worker smokes the drug off-duty over the weekend, the person will test positively days later at work.
Already, many companies have stopped testing for pot use. Why?
They’ve repeatedly had to terminate good-performing workers because they failed drug tests.
However, the employers had great difficulty in replacing the employees because applicants kept failing the tests, as well.
So such companies that stopped testing for marijuana have enjoyed a recruiting advantage. Countless workers now know they can smoke pot without hurting their chances for a job.
It’s reasonable to assume that the number of states legalizing marijuana for medical and/or recreational use is likely to increase.
Conflict with federal law
However, possessing or using marijuana is illegal under federal law.
Under the Controlled Substances Act, pot is deemed a Schedule I drug along other drugs such as ecstasy, heroin and LSD. This means it’s considered to have a probability for abuse.
For jobs that necessitate full safety behavior such as operating equipment or driving, the law requires companies to terminate workers who test positive for marijuana.
For companies that contract with the federal government, drug-free workplaces are required.
Indeed, just like alcohol – even in states where pot use is legal – companies are able to test workers for drug use, prohibit them from using marijuana or being high on the job.
Medical use
The medical use of marijuana complicates the situation and creates more challenges for companies.
Federal law prohibits doctors from prescribing marijuana. Furthermore, marijuana cardholders mistakenly believe they’re immune from employers’ zero-tolerance policies.
So company policies might indicate the necessity to start a dialogue with medical-use employees for an accommodation.
Perhaps an alternative can be prescribed. Or an employer might consider allowing an employee to go on leave.
However, what’s an employer to do with other employees who subsequently ask for medical leave over their marijuana use?
It depends on the company’s willingness to accept risk.
Some companies will want to keep their zero-tolerance policy to stay in compliance with federal law. On this, they’re on solid legal ground.
Other companies will want to adhere to their local and state marijuana laws, especially for certain high-performing employees. But it’d be a fairness issue – they’d have to do it for all other workers, too.
Screening alternatives
There are alternatives to screening for marijuana use, including the training of your managers to spot certain behaviors and factors such as bloodshot eyes.
For a lot of employers, it might come down to the types of duties that are dangerous when workers are impaired. For truck drivers or forklift operators, marijuana use could be a safety issue.
All of this prompts a consideration: Whether you should review your marijuana policy.
Impairment is an issue for safety-sensitive industries. If that’s the case your handbook should explain marijuana use is prohibited in your workplace and for employees who are on the clock.
Personally, after a CPA gave my firm a dysfunctional performance I once had to terminate a him whom I also suspected was a marijuana user.
Furthermore, I would not want a marijuana-using employee handling my finances or IT affairs.
However, on a case-by-case situation, you can consider whether to impose a zero-tolerance and firing policy.
But in this litigious society, clear and effective communication of your policies is paramount.
If you want to keep a zero-tolerance policy, you should be proactive with your policy.
You can acknowledge marijuana use is legal and state you nonetheless have a zero-tolerance policy, but you must explain what it means for your employees.
From the Coach’s Corner, here are related HR issues:
10 Best Practices for an Online Employee Handbook — Companies that don’t convert their employee handbooks into electronic documents are missing noteworthy opportunities in human resources. Conversely, businesses that switch to a digital format accomplish at least five HR goals.
Best Employee-Handbook Values to Avoid Legal Issues — Neither you, nor your company and nor should your employees be relying on an employee handbook with illegal or antiquated policies. Here are employee-handbook values to consider.
Best Practices with HR Records to Guard against Legal Risks — If you aren’t able to supply relevant documentation, you’ll pay a heavy price. In some cases, you’ll even be forced to give the job back to a nonperforming or toxic employee.
For Best HR Performance Reviews, 10 Sample Goal Phrases — A well-written set of performance goals work to motivate employees and help them to focus better on their responsibilities. They must be written with the right phrasing so they inspire performance and don’t invite costly lawsuits.
“So many writers make dope glamorous; a form of romantic transgression, or world-weariness, or poetic sensitivity, or hipness. Mainly it’s the stuff of ritualistic communion among inarticulate bores.”
-Leonard Michaels
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