Drug policy keeping up with changing pot laws? A checklist

States’ legalization of marijuana has made creating effective drug policies a nightmare. Thankfully, new guidance is here to help. 

The American College of Occupational and Environmental Medicine and the American Association of Occupational Health Nurses just published the report, “Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers.” (PDF)

The purpose: help employers cope with ever-changing pot laws — and create legal (while still effective) workplace drug policies.

It’s complicated

The problem, as you well know, is that more than half of states permit weed use in some form. And in every case, those states’ pot laws clash with the federal government’s stance on weed.

Example: Marijuana is illegal under federal law, so employers who fire or refuse to hire employees for using marijuana are not in violation of the ADA — or any other federal anti-discrimination statute.

But, as the report points out, “… some states limit employer action against workers who use marijuana according to state standards.”

Making matters worse, even laws within the same state can send employers mixed messages.

Example: In Colorado, employers can ban weed use (a.k.a., impairment) on the job. But another law in the state prohibits employers from firing workers for “engaging in lawful conduct while off-duty and off premises during nonworking hours,” according to the report.

Translation: A worker can smoke weed off the job and still be fired for showing up to work impaired.

Make safety a point of emphasis

Despite these seemingly conflicting laws, the report points out there is one area where employers still have some freedom to safely take a hard-line stance against marijuana impairment at work: employee safety.

One of the themes repeated throughout the report is that if employees are in safety-sensitive jobs — or there’s evidence of a safety issue — employers are generally in the clear to ban pot impairment on the job.

That’s true even in states limiting employer action against workers who use marijuana in accordance with state laws.

But what about taking action against smokers without proving a safety or business necessity for doing so? You’re entering uncharted legal waters, according to the report.

It warns that in some states, “… if drug testing is done, the decisions to test must be job-related and necessary for business, and conducted when there is evidence of a safety or job performance problem.”

Does that mean you have to let some impairment on the job slide? Maybe, maybe not.

The report says, “Although state laws vary, laws regulating marijuana require employers neither to permit drug use in the workplace nor tolerate employees who report to work impaired.”

But that’s not a green light to ban all pot use and impairment in the workplace. The reality is, there’s little legal precedent in this area and, according to the report, “… several states have passed laws that limit random drug testing for workers in non-safety-sensitive positions.”

Bottom line: It’s still possible to get caught in a costly lawsuit if you fire a person who feels entitled to smoke on the job because of the loose pot laws in his or her state.

The advice of the report’s authors: Consult with legal advisors every step of the way to ensure your policies can withstand legal challenges at all levels — federal, state and local.

Beware: Urine tests

Another point of emphasis in the report: To defend taking an adverse action against a pot user — in states that allow pot use on some level — you’ll need to prove the person was impaired at work.

And a urine test alone isn’t sufficient enough to prove that. As the report points out, urine tests are great at detecting past pot use, but little else — let alone current impairment.

For that reason, the authors suggest conducting a more thorough clinical exam — which may or may not include blood testing. Again, the authors suggest seeking the advice of legal counsel in these matters — in addition to medical professionals, like a licensed medical review officer (MRO) who reviews lab results.

Policy checklist: Is yours keeping up?

In closing, the report offers a checklist of what a good drug policy includes.

The must-haves mentioned:

• the purpose/intent of the policy
• employees covered by the policy
• when the policy applies
• prohibited behavior (the report also said supervisors should be trained on how to spot and document this behavior — to help justify drug testing and ward off discrimination/unfair treatment claims)
• whether employees must inform their supervisor of pot prescriptions or drug-related convictions
• whether the policy covers searches and the extent of them
• a way for employees to report unsafe job performance/conditions
• behaviors that would be indicative of impairment (so employees know what to report)
• requirements for drug testing (which should include input from an MRO)
• consequences for violating the policy
• whether return-to-work agreements will be needed after a substance abuse-related absence
• measures to protect employee confidentiality
• measures for policy enforcement
• how your organization plans to communicate the policy to employees, and
• an explanation of the assistance available to drug users.

Cite: “Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers.” (PDF)