Although marijuana continues to be an illegal drug on the federal level, 35 states have already enacted laws sanctioning it to some degree. Fourteen of those states have passed laws that protect workers from being fired for the lawful, private use of it.
As legalization efforts continue, many employers feel they are now on shaky ground as they try to keep up production and maintain the safety of their workers and clients as they face increased marijuana use. The drug’s standing, somewhere between legal and illegal, makes it distinctive from other substances that can impair their workers.
Business owners and HR departments are struggling with how they should move forward as this cultural shift (and legal shift) impacts their organizations. Here are a few thoughts to consider:
Update an existing drug policy or initiate a new one.
Without a policy on marijuana in the workplace, businesses might face an expensive court battle if they terminate a worker who failed a drug test. It’s essential that companies have a drug policy and enforce it consistently.
Companies that operate commercial vehicles, for example, must do drug testing that’s regulated by the Department of Transportation. Even employers who take a liberal view toward occasional marijuana use need to have a policy in place in case one of their drivers is suspected of being intoxicated from another substance.
Companies with existing substance abuse or drug testing policies should have them reviewed and updated. The policy should be customized to the type of business and the state in which they do business.
Some questions to ask as you create a drug policy.
- When and under what circumstances will we test employees?
- Which substances will we test for?
- Who will do the testing?
- What are the employees’ rights and responsibilities under the policy?
- How long does a worker have to submit to a test?
- What about medical exceptions to the policy?
- What happens to the employee who fails the test?
How do you handle the worker who uses medical marijuana to treat a medical condition?
According to the Americans with Disabilities Act (ADA), if you have 15 or more employees, you are prohibited from discriminating against any of them because of a disability or medical condition. Now that medical prescriptions for marijuana are available, you will need to ensure you’re not discriminating against the medical condition of an employee as you enforce a substance abuse policy.
No easy answers.
Employers who are successfully dealing with the issues of marijuana in the workplace are keeping up with changes in the law, updating their policies, and enforcing them consistently. Work with your HR professionals to stay alert for changes, and make certain your company’s policy is clear, consistent, and current.
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