Marijuana and the Workplace – How to Navigate a Workplace Policy in a Changing Environment

Marijuana and the Workplace – How to Navigate a Workplace Policy in a Changing Environment

By: Nicole Solecki, HR Consultant

With marijuana legalization rapidly occurring across the country, having an effective and updated workplace policy is vital. Companies must remain up to date on the legal aspects and different options they may want to utilize. In this blog, we’ll go through the in’s and out’s of current trends as well as a Step-by-Step guide to create an effective workplace policy and how to manage when you suspect an employee may be under the influence.

Marijuana has been legalized in a large number of states and it is currently being discussed on the federal level. Due to the ever-changing landscape many companies are revising their Drug Free workplace policies and removing marijuana from pre-employment drug screening, background checks, and workplace policies while leaving that it is still a violation of policy to be under the influence while at work. Before creating your policy, you should research which states have legalized medical and/or recreational use and which state laws dictate on pre-employment testing for marijuana.

Once you are familiar with the laws in your state, you are ready to start creating your policy. The first step is asking the following questions within that policy:

• How often will tests be given? Consider:
  • Random testing
  • Periodic testing
  • “For-cause” testing – when an employee is suspected of drug use
  • Regularly scheduled testing for employees given a “second chance”
  • After-accident testing to ensure drugs were not a factor
• Are employees obligated to take the tests?
• What drugs are against the company policy?
• How do you address an employee being drug impaired at the workplace?
• What actions are taken with a positive drug test result?
• How can Employee Assistance Programs help employees?
• What are the follow-up steps with retained employees who tested positive?

When implementing a new drug-free work policy it is important that human resource staff explain the policy to both new and existing employees and include a written copy in the orientation package and employee handbook. There is no federal law that prohibits an employer from requiring an employee to use an employee assistance program. It is a good practice that any workplace that is considered Drug Free have access to an EAP or Employee Assistance Program. Often Last Chance Agreements and resources can be accessed to help employees through rehabilitation if and when it applies.

For obvious reasons, companies with employees in safety sensitive positions should have a zero-tolerance policy for drug use. A Zero tolerance policy means employees will not gain or retain their jobs if they test positive for marijuana. You can click here to see if your business is defined as a “Safety-sensitive” job. An employer may opt to implement a zero-tolerance policy even if they are not safety-sensitive, but the terms of the policy must be clearly stated and communicated to employees.

Employers that have a Drug Free workplace but not a zero-tolerance policy may decide to utilize a “Last chance agreement.” Meaning, upon an employee testing positive for drugs in the workplace, an employer may provide terms for continuing employment for said employee. These terms should be set forth in an agreement signed by both employer and employee. The agreement should include:

• Consequence of initial action, such as lack of pay and work for a set time.
• Actions towards not repeating behavior, like enrollment and attendance in a counseling program (with dates of attendance and proof of participation) can be managed by a EAP to protect privacy.
• Further safeguards, like random drug testing for a certain period
• Terms for termination, such as not complying with terms of agreement, including random testing.

Companies should consider accommodations for the legal use of medical marijuana during non-working hours. If a company elects to do so, they may ask the employee to provide their medical marijuana card and help them understand that marijuana use must not interfere with work in any way. A positive work environment meets the needs of the employee with compassion and seeks to understand. There are also some states that protect employees with medical marijuana cards. Unless you are a part of the safety sensitive sector mentioned above, you should check with your state regarding medical marijuana protections before putting a zero-tolerance policy in place.

Employee Testing: If you are having an employee get drug tested due to suspicion, conducting a proper investigation is vital. What behavior led to the suspicion? Were there any other witnesses? Has this behavior been witnessed previously? Is there a pattern? Try to gather as many details and be as specific as possible. Two members from management, one being HR, should observe the employee and record what is being seen. These observations should take place independently and at different times, taking note of:

Physical Traits: Are their eyes bloodshot?

Physical Behavior: Do they have impaired coordination/motor function? Are they anxious, slow to respond, seemingly dizzy, or overly tired?

Emotional Behavior: Do they seem paranoid, unmotivated, or lacking judgment?

Once you have concluded suspicion and noted observations you should decide next steps. There are three different steps you may take:
1) Decide there was not enough proof and let it go.
2) Seek more observation by another different observer.
3) Speak to the employee due to reasonable suspicion.

If you determined reasonable suspicion does exist, you must speak to the employee. Be careful not to make any accusations, just that a drug test is needed to confirm compliance with company drug policy. HR must obtain employee consent for the drug test and provide transportation to and from the testing center and/or home. Let the employee know next steps, such as returning to work or receive compensation while waiting for the test results. HR must make sure everything is well documented.

Navigating an effective workplace policy and what to do when you suspect an employee is under the influence can be tricky. We hope this post has provided you with effective tools to create your policy and give you next steps in dealing with testing an employee due to suspicion.

If you need further guidance, HRBOOST® can help! Let us give you the boost you need.  Give us call, we are always on standby!