Even employers in the cannabis industry need to consider drug policies and laws that govern workplace safety
By Catharine Morisset and Rochelle Nelson
Do I need to drug test my employees? This is an important question, even for employers in cannabis-related businesses. Many employers want to promote a workplace culture consistent with their ethos, product and image of a cannabis-friendly lifestyle. But all business owners have legal obligations to maintain a safe workplace for their employees and customers. When it comes to allowing employees to use marijuana, where should the line be drawn?
At a Glance: Drug Policies
Marijuana Venture asked more than a hundred legal cannabis businesses about their drug policies.
Each company was asked four questions on the promise that any answers published would remain anonymous. Respondents were allowed, but not required, to elaborate on their answers.
Does your company have a specific drug policy?
Does your company conduct pre-employment drug testing?
Is cannabis included in your pre-employment drug testing?
Does your company allow cannabis use on the job?
Not surprisingly, the most disproportionate answer was whether companies tested for cannabis prior to employment. More than 90% of the respondents said their companies did not drug-test for marijuana. The overwhelming sentiment was that employees can do as they choose on their own free time. After all, in states like Washington, Colorado and Oregon, cannabis is legal for all adults.
“We wouldn’t have any employees!” one company joked.
Meanwhile, the widest range of answers were regarding on-the-job marijuana use — a subject that also addresses a wide range of state laws, differentiating between medical and recreational purposes and the varying responsibilities of each position.
One company said it does not allow on-the-job consumption, “but we have sometimes turned a blind eye if there was no harm.”
Another said having employees who are high is just bad for business: “We have found it slows productivity for employees and with the science we have to conduct, things are forgotten and critical steps are missed.”
While employment laws differ from state to state, many of the businesses only allowed on-the-job consumption for medicinal purposes with a caveat, like with any medication, that it does not interfere with the employees’ responsibilities.
“We do not appreciate, nor tolerate a ‘stoner’ mentality at our dispensary, defined as getting as high as you can while still fooling yourself (but not others) that your performance is great,” one company said.
To a certain degree, answers fell in line with the technical nature of each position: Companies that worked with extraction and other scientific processes were more likely to take a hardline stance against on-the-job consumption; employees who interacted with the public were less likely to be allowed to use marijuana on the job than a gardener who interacted with plants
The phrase “drug-free workplace” is often used in reference to a combination of policies, including pre-employment drug testing, post-accident or reasonable suspicion testing, a prohibition on workplace use or possession, workplace safety and accident prevention, and employee assistance programs.
Employers typically adopt drug-free workplace policies because laws tell them they must (for example, federal contractors or common carriers employing truck drivers who drive across state lines) or because of their legal obligations to provide workers with a safe workplace. Employers may also want to be careful about who they hire to handle the cash register, operate harvesting equipment or close the shop at night. Drug testing can be an effective way to weed out risky job candidates and maintain a healthy and effective staff.
What Laws Apply?
Even assuming that the employer in question falls outside of federal laws that strictly prohibit marijuana use or require drug testing, other federal and state laws regarding drug use and abuse and workplace safety do apply.
For example, active illegal drug users are not protected by anti-discrimination laws regarding disabilities, but recovering addicts are.
Thus, it is lawful to terminate someone who tests positive for cocaine (assuming you have a drug testing policy prohibiting its workplace use), but it is unlawful to terminate someone you discover is a recovering cocaine addict solely for that reason. Most courts that have considered the issue, including those in Washington, Oregon, California and Colorado, have concluded that because marijuana use remains unlawful under federal law, an employer does not have to accommodate medical marijuana use and may fire applicants or employees who test positive for THC. In other words, “zero tolerance” policies so far remain valid.
On the other end of the spectrum, many states, including Washington, Oregon and Colorado, do not have any specific laws setting forth requirements or procedures for employee drug testing. This leaves employers with the flexibility to use pre-employment screening or on-the-job testing, like post-accident or reasonable suspicion, or no testing at all.
Workers’ compensation insurance, including insurance available through state taxes, like in Washington, presents another area of risk. Employers who allow marijuana use on premises may be liable for workplace injuries if they tolerate on-the-job use. This would include the employee’s medical costs and lost wages. Employers would also likely be on the hook for property damage or injury caused by an employee under the influence, even to third parties.
Employers willing to accept the legal and practical risks associated with more tolerant policies still must decide where to draw the line regarding acceptable marijuana use. Even the best employees may abuse policies and become too high to effectively perform. Can you discipline such employees fairly without drug testing or having a drug abuse policy? Having clear policies in place will help ensure you do so on a consistent basis. Maintaining a strict prohibition of workplace use and requiring a positive drug test before firing an employee can be a strong defense against wrongful termination claims.
When contemplating a drug policy, some items to consider include:
– To what extent do the functions of the job and safety concerns demand either a more stringent or more lenient drug policy, if at all?
– What is the purpose or goal of the policy?
– Will you offer an employee assistance program to employees who suffer from addiction and give second chances?
– Who should the policy cover?
– When will you test? Pre-employment, post-accident, reasonable suspicion, random?
– How will you communicate the policy to your employees?
– Do your supervisors know what “reasonable suspicion” means? How will you train them?
The legal considerations and risks of tolerating workplace marijuana use go beyond those discussed here, as do the practical considerations. The prudent cannabis industry employer will walk through their options with legal counsel now, rather than cross their fingers and hope for the best.
This article is the first of a multi-part series addressing key legal issues for cannabis businesses from the beginning to the end of an employment relationship. The September issue will cover “Drug Testing 101: Practical Tips for an Effective Policy.”
Catharine Morisset and Rochelle Nelson are attorneys in the Seattle office of Fisher & Phillips, LLP, a national law firm committed to providing practical business solutions for employers’ workplace legal problems. They can be reached at email@example.com and firstname.lastname@example.org, respectively. The firm only handles labor and employment law, with more than 350 attorneys in 32 offices, including Washington, Oregon and Colorado.