Marijuana Laws, Opioid Crisis Prompt Workplace Policy Updates

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As more states allow marijuana use and as opioid abuse reaches a crisis level, HR professionals must revisit—and perhaps revise—their workplace policies on drug use and testing procedures.

Though marijuana is still illegal under federal law, 30 states have legalized medicinal use and nine of those states legalized recreational use. Furthermore, in the last year, some state courts have held that employers can't discipline workers based on their status as medical marijuana cardholders.

The conflict between federal and state laws and the inconsistent treatment among state courts regarding marijuana use make it difficult for employers to develop policies and procedures, said James Reidy, an attorney with Sheehan Phinney in Manchester, N.H., at the 2018 Society for Human Resource Management Employment Law & Legislative Conference.

"It's confusing for a lot of HR professionals to try and comply with federal as well as state requirements," said conference attendee Gregory Lewis, SHRM-SCP, who is the vice president of human resources for Valence Surface Technologies. He works in the aviation industry, which has federal drug-testing requirements, and his employer has offices in California and Washington where recreational marijuana is legal—which makes compliance particularly challenging.

Employers also must balance the need to maintain a safe workplace with the need to hire good employees. Can you afford not to hire individuals who use marijuana when they're off duty? Reidy asked.

The nationwide unemployment rate was 4.1 percent in February 2018—which is considered full employment—and the unemployment rate is even lower in some states. That means a lot of employers are scrambling to find qualified candidates, and they may consider dropping marijuana from their drug screens as its use becomes more socially acceptable, Reidy said.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

Another big issue causing employers to re-evaluate their drug and alcohol policies is widespread opioid use. In October 2017, President Donald Trump declared the opioid crisis a public health emergency.

Opioid use causes attendance and performance problems as well as safety concerns, Reidy noted. But many employers may not actually be prohibiting on-the-job opioid use: 81 percent of employers lack a comprehensive drug-free workplace policy, according to a 2017 National Safety Council survey. And only 19 percent of employers surveyed feel "extremely prepared" to handle prescription drug abuse in the workplace.

Employers should take a close look at their drug and alcohol policies to ensure they are up to date and address modern issues with marijuana and opioid use in the workplace.

Think Through Your Response

It isn't easy for employers to detect marijuana use at work, because many people are no longer smoking it. Rather, the substance is consumed through oils, edibles (such as cookies and lollipops) and other methods.

Opioid use might be even harder to detect because pills have no odor and the symptoms of opioid use—such as mood swings, nausea and anxiety—are common to many ailments.

Employers should focus on workers' performance and impairment, Reidy said. At a minimum, a drug and alcohol policy should:

  • Prohibit the use, possession, sale, distribution or manufacture of drugs and drug paraphernalia at work.
  • Forbid employees from reporting to work while under the influence.
  • Reserve the right to conduct searches of workspaces upon reasonable suspicion.
  • Ensure compliance with applicable federal and state laws.

Employers can still opt to have a zero-tolerance policy, but they may run into issues with recruitment and retention and with state law compliance, Reidy said. For example, states such as Maine prohibit employers from firing workers for the first failed drug test. Employers in the state must provide workers with an opportunity to complete a rehabilitation program. If workers refuse or fail a subsequent test, they may be fired.

But the answer doesn't always have to be termination, Reidy said. Just as employers may give applicants and employees with criminal records a second chance, they may see a benefit to giving an applicant or employee with a history of drug or alcohol abuse a chance at rehabilitation.

Some employers are providing a "recovery-friendly workplace" with policies that focus on:

  • Workplace education and outreach.
  • Coordination with an employee assistance program and wellness programs.
  • Supervisor training.
  • HR support.
  • Confidential access to peer recovery support.

Regardless of the specific policy, it is important to be consistent when testing and disciplining employees, Reidy said. "Remember that supervisors are your eyes and ears." They should be trained to spot a problem, and they should know who to contact when a situation occurs so they don't have to handle it alone.  

 

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