In late 2015, Oregon legalized the recreational purchase of marijuana, generating no small amount of confusion with employers about what this means for their workplace. Prior to that, the medical marijuana program was the only available outlet for people to legally acquire the drug – and generally speaking it didn’t seem to cause as much confusion for employers.
Even then, when it came to hiring practices, the old standard was easy and familiar – no matter the illegal drug – if you tested positive in a pre-employment screen you often wouldn’t be hired.
So now that virtually all restrictions are lifted, what does this mean for hiring, firing and workplace standards?
Here’s what I’m telling my clients – you have essentially two options:
- Adhere to the Federal Standard – testing positive for marijuana – despite a medical marijuana card, Doctor’s prescription or allowances for recreational use – remains illegal under Federal Law. End of story.
- Adopt a Neutral Impairment Standard – Based on external observations of impairment, an employee should be tested at a certified lab for confirmation of impairing substances in their system – regardless of what might be causing the impairment.
Here’s the context behind these options:
Federal Standard – This means that if an employee is involved in an accident, appears impaired on the job or tests positive in a pre-employment drug screen, you can most times, terminate employment or refuse to hire. It’s always best to run these issues past your Attorney or HR professional first though.
Many business owners don’t want to open the door for lawsuits and claims that their employee was a known marijuana user and that a business shares liability for any incidents that occur.
The court cases on State legalized marijuana have been slowly coming – with very clear deference to the Federal prohibition emerging on employment matters – even in Colorado – a marijuana “early adopter” State. Along with the Federal government, insurance companies also are providing subtle assurances to business owners that marijuana use won’t affect their willingness to pay claims. But those companies often provide little to nothing in writing clarifying this.
Bottom line – for some businesses, the uncertainty is too much, and playing it safe by going with the federal standard is their best option.
Neutral Impairment Standard – this is where the employer clarifies a policy that any external signs of impairment or substance use, are grounds for testing, and possible discipline and discharge. Whether it’s the smell of marijuana, beer or slurred speech, these criteria would have been called out in the employee handbook beforehand – and the observations documented by one or more people – before testing is required.
Regardless of your policy it’s important that you have standards for objectively evaluating whether or not someone appears impaired and a certified lab relationship established, should you need to use it.
There are circumstances where someone could be using a new, prescribed medication for the first time and are unware of its impacts. Also, having a procedure for when to test, will better insulate you from claims of discrimination based on medical condition – not a place you’d like to be.
Vantage Point can help you define and refine what this process can look like and how to manage the risk of your specific situation –to better protect the company you’ve worked so hard to build.
Give us a call if you’d like to review your current drug policy, or establish a new one. We’ll work with you to establish a clear approach, that’s consistent with your comfort level.
Tom
