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On Nov. 4, voters in Oregon, Alaska and the District of Columbia passed initiatives legalizing the recreational use of marijuana. Each measure provides that the new law doesn’t prevent employers from restricting pot use by their employees. But employers are still confused, according to David Symes, an attorney in Littler’s Portland, Ore., office.
“I already have received several calls from employers,” he said. “There is a lingering question: Marijuana will be legal. Won’t we have to allow it?”
The short answer is no, he said. “It’s like alcohol. It is legal, but you can’t come to work drunk.” It is clear that no employer has to, or should, tolerate marijuana use or possession at work or employees who come to work impaired, Symes said.
The more complicated issue arises for employers with drug-free workplace policies who randomly drug test employees, said John DiNome, an employment attorney with Reed Smith.
He posited a hypothetical: “The employee says, ‘I’m using on weekends, not at work, but it is still in my system on Monday. My employer’s current drug test determines whether THC, the active ingredient in marijuana, is still in my system. Does the fact that it’s still in my system mean I’m under the influence or intoxicated at work?’ ”
Unlike blood tests for alcohol, where there is at least some consensus as to what blood alcohol level means the user is impaired, there is no accepted percentage to show that a marijuana user is under the influence. States have not developed a number that signifies an individual is impaired, DiNome said.
According to Symes, for employers with a drug-free workplace policy, the presence of any level of THC should be enough to take disciplinary action against an employee. ”For recreational marijuana use, if an employee has THC in his or her system but does not appear impaired, your drug-free workplace policy should be in full force and effect,” he said.
“One of the difficulties is that the science of the effects of THC in the system is not as advanced as one would hope it would be. Some scientific studies say that any THC in your system, you are impaired,” Symes noted.
There are liability issues, he said. Where is the cutoff point? Is there some amount of THC a company is willing to tolerate? What is that amount?
“I would recommend to employers that they preclude THC in the system entirely, until science is able to tell that the effects have worn off,” he said.
“I would be concerned about potential liability if I tried to determine how much THC was OK, and I was wrong. If you are going to have a drug-free workplace policy, you can’t be wishy-washy,” he concluded.
DiNome agreed that, as a legal matter, an employer with a drug-free workplace policy does not have to tolerate an employee’s legal weekend use of marijuana, as illustrated by a drug test positive for THC—even if the employee does not appear impaired.
“An employer can legally say, ‘We don’t want you using recreational marijuana ever,’ ” he said.
But is that necessarily a good policy? “If an employer is trying to recruit the best people, [does it] tell recreational marijuana users, ‘We don’t want you if you are using,’ ” even if the use is in the employee’s own time and legal under state law? he asked.
And what if an employee tests positive for THC but does not seem impaired? The employer might not want to fire him or her out of fairness or a sense of balance in the workplace, DiNome said. The employer might say, “We are going to respect state law. If you want to use it reasonably, we won’t discipline you, but don’t come to work under the influence, don’t sell it at work. We’ll take action if you are under the influence.”
Or an employer might say, “I don’t want users in my workplace. We do business nationally; we don’t want to be known as the employer who condones the use of marijuana. We don’t want to tolerate it.” Employees, however, may view that as harsh, DiNome said.
“Employers are going to have to examine their policies, drug testing procedures and goals, and come up with their own answers,” he said.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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