Recently the Washington State’s Supreme Court ruled that employers can discharge an employee who uses medical marijuana, even if the employee only uses the drug at home and does not experience side effects that impact his/her job function. This new ruling means that the state’s medical marijuana law (MUMA – Medical Use of Marijuana Act), which protects a patient who has a prescription for marijuana from being prosecuted, may not protect the individual in an employment dispute.
Employers, what this means to you:
As HR professionals, our job is to minimize risk for our clients, so they do not find themselves in a costly and time-consuming lawsuit. Regardless, if you believe medical marijuana should be legal or illegal for any use, having a “zero tolerance policy” for any illegal substance under state, or in this case, federal law is the most conservative and least risky stance to take.
Without a “zero tolerance policy”, employers leave themselves open to claims of disability discrimination when medical marijuana card holders are terminated, even if the reason for termination was poor job performance.
To ensure fairness and compliance in your organization as well as reduce the risk of lawsuit, you may want to take the following into consideration.
- How much risk are you willing to take? While the policy you decide upon may be an extension of your values and beliefs, at the end of the day you are running a business so it is important to consider how a drug related employment dispute may influence and possibly compromise the overall goals of the organization.
- Do your research. Some industries and positions require drug testing such as federal contractors, companies in transportation and people operating heavy machinery.
- If you have offices in multiple states, it is even more critical to consider a zero tolerance policy, as employees across the different states within an organization generally expect to be treated the same when it comes to company policies, regardless of their location.
- When crafting a drug policy, be explicitly clear. Include specific information about why you are testing, when you are planning to test and any repercussions if the employee tests positive. Because it is difficult to assess impairment, as it is often subjective, crafting clear criteria will benefit you if an employee decides to make a disability claim.
- Consult subject matter experts. Make certain your policy will stand up in a court of law. Also having an employee assistance program (EAP) is always a good idea no matter what your policy is regarding medical marijuana.
- To further reduce risk, when hiring always make the job offer before conducting the drug test and let the person know that the offer is contingent upon a clean drug test.
- The most legally defensible tactic is to have a zero tolerance policy and to place an employee who tests positive on disability leave instead of automatically letting them go. You will then want to communicate that it is up to the employee to make a decision on whether they are willing to work under the policy or leave.
- Address alcohol abuse as part of your drug policy as the dangers of abusing alcohol can be just as damaging.
Guidelines for Conducting Drug Tests
In the event you decide to test employees for illegal substances, here are some key things to remember:
- Have a reason for testing your employees. Will they be working with hazardous equipment or substances, driving a company car, etc.? Many see drug testing as an invasion of privacy. Having a job specific reason for the test enhances your employee relations.
- Enlist the help of a US Department of Health and Human Services certified laboratory and medical review officers. Do not use unaccredited laboratories.
- Ensure you have a system in place that secures the confidentiality of employee drug-testing records. This includes assigning one employee who will be responsible for receiving test results and keeping them confidential.
- Inform employees 30 to 60 days before the drug-testing program commences.
- Carry out the policies and subsequent repercussions you have communicated, making zero exceptions. Being inconsistent can open you up to a lawsuit.
- Conduct a confirmatory test if an initial test is positive.
- If results are positive, make arrangements for the employee to be driven home.
- To further reduce risk, always have another person with you when talking to the employee about positive results and only share the results with people that absolutely need to know.
While this is likely be a source of ongoing debate and legislative review, we encourage you to create a policy that best fits your company. Let us know if you have implemented a policy that has been successful for your company or if we can help create one that works for you.