Although marijuana is still against federal law, 30 states have permitted the drug for medicinal purposes and nine of them also allow—or soon will allow—recreational use. Moreover, in the past 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 legislation makes it difficult for employers to develop policies and procedures, said James Reidy, an attorney with Sheehan Phinney in Manchester, N.H., at the 2018 SHRM 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 Gregory Lewis, SHRM-SCP, vice president of human resources for Valence Surface Technologies. Lewis 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.
Given the tight labor market, many HR professionals are not in a position to be turning away promising talent. That means company leaders—and HR departments—must balance their commitment to maintaining a safe workplace with the need to hire good employees. Reidy advises employers to ask “Can we afford not to hire individuals who use marijuana off duty?”
At the same time, rampant opioid addiction, which President Donald Trump declared a public health emergency last year, creates even more vexing dilemmas for which few companies seem prepared. Indeed, 81 percent of employers lack a comprehensive drug-free workplace policy, according to the results of a 2017 National Safety Council survey. And only 19 percent feel “extremely prepared” to handle prescription drug abuse in the workplace.
Unfortunately, neither marijuana nor opioid use is easy to detect on the job. The telltale odor of pot smoke can’t be relied on, since today many people consume the substance through oils, edibles (such as cookies and lollipops) and other methods. And the symptoms of opioid overuse—such as mood swings, nausea and anxiety—are common to many ailments.
The best employers can do at this point is to focus on workers’ performance and impairment, Reidy said.
At a minimum, your 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.
While you can still opt for a zero-tolerance policy, think about whether that makes sense in light of your recruitment and retention goals as well as your ability to comply with state law, Reidy said. For example, Maine prohibits employers from firing workers for the first failed drug test; instead, employees must be given the chance to complete a rehab program.
[SHRM members-only policy: Drug Testing: Drug and Alcohol Policy]
And remember, there are other options besides termination, Reidy said. Just as many employers are giving applicants and employees with criminal records a second chance, you might consider doing the same for those with a history of drug or alcohol abuse. Consider becoming 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, be consistent when testing and disciplining employees, Reidy said. “Remember that supervisors are your eyes and ears.” Train them to spot a problem, and make sure they know who to contact in an emergency. The issues are complicated, but you don’t have to handle them alone.
Illustration by Brian Stauffer for
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