Handling employee marijuana use got significantly tougher this year, as COVID-19 forced millions of workers from office to home, far from the watchful eyes of management. Experts say we’ll be well into 2021 before a vaccine is readily available and a return to normal life is possible. Employers cannot afford to wait that long to address the risks associated with remote on-the-job marijuana use. You must act now to manage medical and recreational use by work-from-home staff.
Legally, employers may prohibit on-the-job marijuana use, regardless of whether that job is conducted in an office, on a plant floor, or at home. However, in the minds of work-from-home staff who believe they are free to do whatever they want in their own homes, legal lines may be a bit blurred. The best solution: Establish a work-from-home marijuana policy. Insist on compliance during working hours, at home, the office, or elsewhere. Support policy with online training. Require employees to acknowledge they have read and understand the work-from-home marijuana policy and that they agree to abide by it. Make it clear that any violation of policy may result in disciplinary action, up to and including employment termination.
Exercise control cautiously
While policy is key to compliance, be careful not to overstep. If two managers observe an employee acting impaired during a business-related Zoom meeting, you may want to test for marijuana use or take disciplinary action. Do not act too quickly, however, if a personal Instagram post reveals marijuana use. Unless you are certain a policy violation occurred during working hours, let it go. Off-duty employees are free to consume edibles and smoke weed in states in which recreational or medical use is legal.
Train managers to spot impairment
Some employers test for marijuana only if there is a reasonable suspicion of impairment. At least two managers must observe marijuana use, possession, or impairment. Odor counts, especially when paired with slurred speech, unsteady movements, or other indicators.
· If reasonable suspicion leads to testing, adhere to marijuana policy and testing procedures, as well as the law and government regulations.
· Notify HR and secure employee consent before testing.
· Prior to testing, inform the employee of observations made, reasons for testing, screening procedures, and potential consequences of a positive test.
· Following a positive test, determine if the employee has a medical marijuana card and a previously undisclosed condition.
· Consider reasonable accommodations and employee assistance programs (EAPs) as alternatives to dismissing valuable employees who test positive.
Know your legal rights and restrictions
While illegal on the federal level, many states have legalized medical and recreational marijuana. Some cities have laws governing marijuana testing for employees and job applicants. Regardless of where your state and municipality stand, now is the time to tackle the challenges of work-from-home marijuana use. Before creating work-from-home marijuana policy, research your legal rights and restrictions as an employer and know the marijuana laws for every state and city in which you operate.
· Can you refuse to hire, discharge, or discipline people because of medical marijuana use?
· Can you deny unemployment compensation to those fired for using medical marijuana in violation of policy?
· Is it possible to block employees from filing lawsuits when terminated for medical marijuana use?
· What about legal claims filed by job applicants you don’t hire because of medical marijuana use?
· Must you accommodate medical marijuana use by registered cardholders?
· May you ask employees and job applicants about their off-duty marijuana use?
· Can workers’ comp claims be denied if one tests positive for state-approved medical marijuana?
· Can staff seek workers’ comp reimbursement for medical marijuana to treat workplace injuries?
Adhere to federal laws and regulations
· Health Insurance Portability and Accountability Act (HIPAA) has not issued medical marijuana guidance. Healthcare professionals must look to the state medical marijuana program (MMP) for guidelines related to the lawful storage and administration of marijuana for patients who are certified medical marijuana cardholders.
· Medicare, Medicaid, and private insurance carriers do not offer medical marijuana coverage.
· Americans with Disabilities Act (ADA) does not require employers to make reasonable accommodations for medical marijuana use. Employers may need to accommodate medical conditions that underlie marijuana use, however.
· Family and Medical Leave Act (FMLA) allows qualified employees with serious health conditions to take time off for medical treatment. Medical marijuana is not covered by FMLA.
· Drug-Free Workplace Act of 1988 requires federal contractors and grant holders to provide drug-free workplaces. This federal law does not pre-empt state marijuana legalization.
Take a considered approach to testing
Think twice before testing staff and job applicants for marijuana. For safety-sensitive positions, screening is warranted (and often mandated). If you would experience staffing problems by refusing to hire or retain otherwise-qualified individuals who test positive, you may want to forgo screening.
· If you test and results are negative, you could face a lawsuit.
· Some states protect marijuana cardholders from employment discrimination. Courts have allowed certified cardholders to sue employers when testing leads to dismissal.
· Not all states allow employers to enforce zero-tolerance policies.
· Some employers forgo testing to avoid disability claims filed by medical marijuana cardholders.
· Some states and municipalities don’t allow employers to inquire about off-duty marijuana use.
· Some states and cities ban post-offer, pre-employment testing unrelated to safety-sensitive positions.
· Testing is mandatory for pilots, commercial driver’s license (CDL) holders, and others who hold safety-sensitive jobs.
· Federal Department of Transportation (DOT) requires screenings of trucking, mass transit, airline, and rail workers with safety-sensitive positions.
· Drug-free workplace programs require reporting of positive tests, even for medical marijuana cardholders.
· Post-accident testing may be required by insurance carriers.
Devise a work-from-home marijuana policy
Effective policy is at the heart of work-from-home marijuana management. To ensure effectiveness, adhere to these seven best practices.
· Create a thoroughly researched work-from-home marijuana policy based on laws and regulations governing recreational and medical use.
· Focus on prohibiting marijuana use and impairment during working hours. Inform employees that they may not use marijuana during working hours, at home, the office, or elsewhere. They may not be impaired by marijuana, alcohol, or other drugs while on the job.
· Weigh the pros and cons of screening staff and applicants. Mandate testing for safety-sensitive positions.
· Train managers to recognize signs of impairment in remote employees, and impose disciplinary action for policy violations.
· Consider making reasonable accommodations for medical marijuana cardholders. Weigh employee assistance programs (EAPs), counseling, or treatment as alternatives to termination.
· Have your legal department review the work-from-home marijuana policy to ensure compliance with all laws and regulations.
· Support policy with online training to minimize risks, manage behavior, and maximize compliance.
Note: If you would like a copy of the whitepaper, “Marijuana Policy & Best Practices: Handling Employee Medical & Recreational Use,” email me directly.
Have you created a work-from-home marijuana policy or are you considering one? Share your thoughts in the Comments below.
