With the recent announcement of Canada’s legalization plus the United States’ 9 states that have already legalized recreational marijuana and the 31 states which have legalized medical marijuana, it’s a topic employers can no longer afford to ignore.

The question is, what should they do about it?

While the number of states legalizing some form of marijuana continues to increase, the U.S. Federal Government is remaining out of it.  With contradictory laws, a lack of standardization and inconsistent practices, its no wonder employers are confused about what to do and how to address it in the workplace.

Here are 7 best practice recommendations for employers of any size!

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Remember, all the information in this blog post is published in good faith and for general information purpose only.  I am not an attorney, nor do I provide legal advice. The information provided is my personal opinion and not that of any organization, business, company, agency or other individuals.  The author is not liable for any losses or damages related to actions or failure to act related to the content of this article. If you need specific legal advice, consult with an attorney who specializes in your subject matter.  Any action you take upon the information you find on this website (www.hrraw.com), is strictly at your own risk.

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Penny Horton | November 4, 2018

1.  Know and Understand State Laws

It’s important to know and understand the laws of the state or states in which you operate since they can vary, tremendously.  Unfortunately, that means that despite your best attempts to standardize your policies and practices across multiple states, that isn’t always going to be possible.

2.  Know and Understand Which Federal Laws Apply

In some cases, Federal Laws and Regulations will trump any state laws.  For instance, employers who are regulated by the Department of Transportation, Public Sector employers, and Federal Contractors with contracts of certain dollar amounts have to follow specific guidelines.  Unfortunately, that means that you may need to have separate drug and alcohol policies, procedures and practices for different groups of employees.

3.  Know and Understand International Laws

If you have offices in different countries you’ve added another layer of complexity because often times international laws are different than domestic laws.  This will mean that you may need separate policies for employees in international locations.

4.  Revise/Draft Drug and Alcohol Misuse Policies In Accordance with Applicable State, Federal, and International Laws

At a minimum your policy should clearly outline, in understandable terms, the following:

• To whom the policy applies (i.e. applicants, employees, interns, temporary workers, consultants, etc.)
• What substances are prohibited (i.e. illegal drugs, alcohol, misuse of legal drugs, etc.)
• What behaviors are prohibited (i.e. using, manufacturing, concealing, selling, transporting, distributing, dispensing, possessing, impairment, use that impacts safety, etc.)
• When the policy applies (i.e. during working hours, while conducting company business, etc.)
• Where the policy applies (i.e. on company property, in company vehicles, on customer/client property, etc.)
• Where and how an employee can seek help for substance abuse problems (i.e. employee assistance program, substance abuse professional, etc.)
• What kinds of testing will be conducted (i.e. pre-employment, for-cause, post-accident, random, etc.)
• How testing will be conducted (i.e. breath alcohol tests, urine drug screens, etc.)
• What are the consequences of violations (i.e. 2nd chances, termination, return-to-work process, etc.)

5.  Educate Leaders and Employees

Leaders are the ones who interact the most with employees and as such, they need to be trained on the detection of drug and alcohol misuse in the workplace.  Employers will rely on them to know when there might be a problem.  A robust reasonable suspicion process will help leaders identify, document and validate the need to do a for-cause test.

Employees also need to be aware of the dangers of impairment in the workplace and their responsibility to keep each other safe.

6.  Communicate, Communicate, Communicate

Employees will have questions as laws change and as policies change.  Your leaders will be the first ones to field their questions.  You need to communicate openly and freely with both of them so they know exactly what they can and can’t do.  Being proactive will save you a lot of grief in the long run!

7.  When In Doubt, Seek Guidance

No employer wants to inadvertently end up in court.  You need someone with subject matter expertise and insight in order to make sure you are following all of the laws, especially when state and federal law conflict.

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REALITY CHECK

Penny Horton has over 10 years’ experience managing drug and alcohol programs for federal contractors, international and domestic corporations and specializes in Department of Transportation / Federal Aviation Administration drug and alcohol testing compliance.

If you need any guidance on your drug and alcohol program, establishing testing requirements or determining best practices, Who’s Your HR? can help!

Who’s Your HR? is available to assist you with HR consulting, contract or project work.  Please review the Solutions and Service page or find my contact information in the menu to the left of this article.

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