By Claudia St. John, SPHR, SHRM-SCP
As the legalization of marijuana, either medical or recreational, sweeps across the country, companies have struggled to come up with a viable policy to address the changing environment. Many of their concerns are valid – marijuana remains illegal at the federal level. Plus, there exists no fool-proof test to assess whether an individual is actively under the influence of THC – unlike alcohol and other controlled substances, for which tests do exist. Further complicating this, many companies work in dangerous industries – such as those in the demolition, lumber, construction and automotive industries – and others are required contractually to maintain a Drug-Free Workplace or to comply with Department of Transportation (DOT) or other federal safety standards which prohibit any marijuana use, regardless of state law.
So, what’s a company to do? If you are under a DOT or federal safety or drug-free workplace standard, check with an attorney, but generally you should not be required to comply with state marijuana use law.
Some of our clients have decided they are going to continue with their practice of testing for marijuana use and deny (or terminate) employment for evidence of pot use regardless of its legal status. The problem with this is two-fold: It will only exacerbate the difficulty of hiring qualified talent and it may be illegal to do so depending on state law.
Here’s our best advice: Consult with an HR or legal professional before you do anything. Generally, we advise those in states with Medical Marijuana Laws to treat pot use like a prescribed controlled substance. This includes, among other things, obtaining medical authorization for use. In states with Recreational Marijuana Laws, treat pot use like you would alcohol, meaning what employees do after work is their own concern. In either case, you are absolutely and completely within your right to take action against an employee who is actively high at work.
In all circumstances we recommend that you:
• Develop a solid marijuana use policy. Make sure it’s compliant in all of the states and cities where you operate. Best to have an attorney give it a seal of approval.
• Think carefully about your drug testing practices from a pre-employment, post-accident and reasonable suspicion basis. Many of our clients in states with some form of legalization have dropped THC from their pre-employment drug panel but still test for it in their other drug panels.
• Train managers to spot signs of impairment and, state law permitting, train them on how to conduct onsite THC impairment assessments.
• Train all your employees on your marijuana policy to ensure they know what is allowed, what isn’t allowed and the repercussions for violating the policy
Complying with various state and local marijuana laws is a challenge. But doing so will ensure you stay legally compliant and able to attract qualified candidates for employment.
Claudia St. John is founder and President of Affinity HR Group, Inc., a national human resources and management consulting firm specializing in hiring and recruiting, HR compliance, and employee engagement. Affinity HR Group, Inc. is ICA’s affiliated human resources partner. Affinity HR Group specializes in providing human resources assistance to associations such as ICA and their member companies. To learn more, visit www.affinityhrgroup.com.
