By: Tony Case
October 17, 2022
As laws concerning the recreational use of drugs continue to shift, many employers are more confused than ever about the disconnect between their own workplace rules and the guidance of local government.
In Minnesota, for example, the legalization of THC has put workplace drug testing in limbo. And even years after cannabis was legalized there, Canadian companies continue to grapple with their drug policies.
This past September, New Jersey issued the latest employer guidance around that state’s recreational cannabis law, which went into effect in 2020. But even after that, confusion still reigns.
In its recent guidance, New Jersey’s Cannabis Regulatory Commission notified employers that it had not yet determined standards for the certification of Workplace Impairment Recognition Experts, which are required by law to enable employers to engage in reasonable suspicion drug testing. It went on to stress that there remains no perfect test for detecting cannabis impairment. In other words, not only is testing still lacking — those who do the testing must meet requirements that are yet to be agreed upon by regulators.
“The reason for all this is that a New Jersey employer can no longer take adverse employment actions against an employee or applicant solely because they test positive for weed,” explained Mark Kluger, partner in the New Jersey employment law firm Kluger Healey. “That is, in part, because of how long cannabis can remain detectable. So, there must be objective signs of impairment before testing is allowable.”
An important wrinkle in all this is that there is no requirement for most private employers to have a drug-free workplace policy of any kind, with the exception of federal contractors and those who work in safety and security-sensitive positions, according to the Substance Abuse and Mental Health Services Administration (SAMHSA), which is part of the U.S. Department of Health and Human Services.
So, why wouldn’t employers simply do away with testing?
“This is the time for companies to abolish drug testing and instead focus on policies for drug control,” argued David Wicks, CEO of Bud Champion, a cannabis seed bank. “To put it simply, you implement policies that restrict the use of cannabis at the workplace. This is the perfect bridge between the changing laws and the pre-existing company policies.”
Noting the shift in acceptance of recreational drugs, Wicks pointed out the disparity between employers banning their employees from using cannabis when the use of substances like alcohol and nicotine remains permissible. “The argument will then simply domino and the company will face an ultimatum: either adapt and change their policy, or keep said policy and face internal consequences,” he said.
In fact, employees have successfully sued employers who terminated them for using marijuana, either for recreational or medicinal purposes.
Meanwhile, theissue of drugs and the workplace continues to evolve. President Biden recently moved to overhaul U.S. policy on marijuana by pardoning thousands of people with federal offenses for simple possession and green lighting a review into how the drug is classified. On the employer side, Walmart recently asked a federal judge in New Jersey to toss a class action suit that accused the retailer of violating the law by using positive drug tests to screen job applicants.
Despite the shifting winds of public acceptance and the law, employers should bear in mind that substance abuse remains an urgent problem. According to the National Safety Council and the University of Chicago, one in every 12 workers in the U.S. are dealing with an untreated substance use disorder (SUD). For employers, the annual cost of an untreated SUD ranges from an average of $8,255 to $14,000 per employee, depending on their industry and role.
What’s more, drug abuse has worsened with the rise of Covid-19, with more than 99,000 overdose deaths in the U.S. in the first year of the pandemic, an increase of nearly 30% from the year before.
While laws concerning a drug-free workplace are complex, there are basic steps employers can follow. SAMHSA offers the following guidelines:
Consult an employment attorney
The American Bar Association or your state bar association can refer you to a qualified employment attorney. Consult with your attorney whenever you alter your drug-free workplace policy, or if you’re launching a new one.
Set clear penalties
Clearly stipulate the penalties for policy violations. If your policy includes a drug-testing program, state who will be tested, when they will be tested, and what will happen to employees with a violation.
Put it in writing
Every employee should receive and sign a written copy of your drug-free workplace policy. Verbal agreements and unsigned agreements have little legal standing.
Document employee performance
Maintain detailed and objective records on the performance of all employees. A documented performance issue often provides a basis for referring workers to employee assistance programs.
Don’t rush to judgment
Do not take disciplinary action against a worker or accuse a worker of a policy violation simply because the employee’s behavior seems impaired. Instead, try to clarify the reasons for the employee’s impairment. If drug testing is a part of your workplace policy, obtain a verified test result before taking any action.
Protect employee privacy
Hold discussions with employees about potential violations in private. Have another manager present to serve as a witness. Never accuse or confront an employee in front of his or her coworkers.
No individual employee or group of employees should receive special treatment. Inconsistencies in enforcement could be considered discrimination.
Know your employees
Getting to know your employees can make it easier to identify problems early on.
Involve your employees
Workers at all levels of your organization should be involved with developing and implementing your drug-free workplace policy. This will reduce misunderstandings about the reasons for having a drug-free workplace program and help ensure that your policies and procedures are fair to everyone.
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