Last month at the NCHRSD lunch and learn, a group of expert panelists led a discussion on what employers need to be thinking about and planning for regarding California’ new recreational use of marijuana. Of course, California has long legalized marijuana for medical use, but how does the new law of recreational use impact employers? Keep in mind that the cultivation, possession, or sale of marijuana is still illegal under federal law. During the luncheon, we came to some important conclusions which I have outlined for you.
I am sure that you are not surprised to know that testing for marijuana, unlike alcohol, has a number of challenges. Dr. Randall Browning, Chief Medical Officer for WorkPartners Occupational Health Specialists, shared that there is no standard to determine intoxication levels; urine can’t determine this and can also show up days even weeks after using (FYI, second-hand pot smoke will not cause a positive result), swabs can only determine recent use but not amount used, hair follicle sample takes 4 days to show up, and blood, although more definitive, is invasive and expensive. So, even if you would like to tolerate off duty use, it would be difficult to assess current intoxication if you suspect someone is under the influence at work. Dr. Browning suggests that workplaces where safety is at an elevated risk and especially when the worker population has a higher probability of using, then zero tolerance would be a safer way to go. He also outlined studies that showed that marijuana users had more negative outcomes such as workplace accidents, turnover, and absenteeism which also suggests zero tolerance as a lower risk option. To learn more, I recommend you read the recent article he wrote for employers in California on this topic.
Employers have three drug testing policy options:
- Zero tolerance, any positive drug test, whether recreational or medical use, results in employment action as outlined in your policy. Be assured that the courts across the country have upheld employers rights to have a policy against illicit drug use (including recreational or medical marijuana use), even if legal in a state.
- A policy that ignores marijuana results (and only considers other drugs). Thus allowing for recreational use outside of work.
- Don’t ask, don’t test policy.
No Matter what you choose, make sure you have these two items in place:
- A policy that specifically includes recreational and medical marijuana use. If you have a zero tolerance policy spell it out very clearly this means nothing, not even casual or medical use with a card. Any exceptions you allow past zero is a slippery slope and may become a legal quagmire.
- A clause that intoxication at any level is not permitted at work and that you may test for reasonable suspicion. Educate managers and supervisors with documentation on the circumstances that would allow for ‘reasonable’ suspicion such as a checklist of objective facts and observations. Plus, if you have less than zero tolerance (i.e. you allow for outside of work use) a urine panel won’t work for marijuana so an added process needs to be in place with possibly a swab first and, if positive, then a blood test. Yet another reason zero has less risk and cost.
The tidal wave is still to come!
Chris Olmstead, Employment Law Attorney with Ogletree Deakins, predicts that the tidal wave is still to come and that we have not yet seen the impact of Prop 64. Access is still limited for most people since marijuana shops will not be licensed to sell until next year. Once they are, we can expect to see many lining the streets. Before the curiosity and trials begin make sure your employees are fully aware of your policy. If you keep or add the zero tolerance option, which for most workplaces provides the lowest risk and lowest cost option, let your workers know, especially if you retest, that any marijuana use could result in employment action or termination.