Welcome to the future.
With the dramatic changes in acceptance of medical and even recreational marijuana, employers need to take a fresh look at the way they maintain drug-free workplaces. Here are some tips for surviving this time of transition.
First, marijuana is still an illegal drug under federal law. The Americans with Disabilities Act does not protect current users of illegal drugs. If you’re in one of the rapidly dwindling number of states that still outlaw marijuana, you can continue testing for marijuana as well as other illegal drugs. You can also fire a current employee or withdraw a conditional offer of employment from an individual who tests positive. If you want to be nice, you can require marijuana users to go through rehabilitation and keep them out of the workplace until they bring proof from a physician or Employee Assistance Program that they have successfully completed their rehab.
Also, if you’re an employer in an illegal-marijuana state, be thinking about how you would want to treat an out-of-state applicant who tests positive for marijuana use that was legal in the applicant’s home state. (This is happening in real life.) Some things to consider would be whether the test was performed in the applicant’s state, or whether it was performed in your state. Would you be willing to go forward with the job offer if the applicant promised to comply with the laws of your state after relocating there?
If you’re in a legal marijuana state, you should be able to take a hard line with applicants or employees who test positive but are using the marijuana only recreationally. One big BUT: If your state has a “lawful products” statute (saying that it is unlawful to discriminate against applicants or employees who use lawful products or engage in lawful activities outside of work), then it’s possible that you will not be able to penalize recreational marijuana use. A lot of states have these laws, so be sure to check before you act.
If you’re in a legal marijuana state that also has a disability protection statute, be very careful before you take action against an applicant or employee who tests positive for medical marijuana. Even though you are not required by the ADA to make reasonable accommodations for medical marijuana use, you may be required to do so by your state disability-rights statute.
Finally, even if you’re in a state that has legalized recreational and medical marijuana, and that has a “lawful products” statute, and that has a disability-rights statute, you may be able to take action against a marijuana user if the user is in a genuinely safety-sensitive job. If the job is governed by federal law (for example, DOT-covered truck drivers), then you can and must follow the federal law. But even then, you may be required under your state law to consider the reasonable accommodations of transfer to another position (for example, a non-driving position) or medical leave.
Let booze be your guide
Alcohol is a legal product that has impairing effects. Although you normally wouldn’t take action against an employee for having a glass of wine after work, you probably would take action if the employee kept a bottle in her desk drawer and was partaking during the work day. Or if she came to work drunk, or so hung over that she couldn’t function.
You generally should not be testing employees for alcohol unless you have some sort of “cause” to do so (either a workplace accident or other objective evidence that the employee was impaired while working). Unless required by federal law, testing for alcohol without cause violates the ADA.
If you’re in a legal marijuana state, you may want to consider applying these principles to your marijuana users: Don’t blanket test for marijuana, but do so only post-accident or when you have reasonable suspicion that the employee is impaired. Require sobriety on the job, but don’t sweat it if your employee wants to unwind with a joint instead of a beer once he gets home from work. Even in states where marijuana is illegal, some employers are starting to move in this direction.
Back to basics
Apart from the above, the standard recommendations about drug testing haven’t changed that much.
First, you should let applicants and employees know the circumstances under which you require testing for illegal drugs. Generally, those could include pre-employment, post-accident, random, reasonable suspicion, and post-rehabilitation testing.
Unless you are governed by DOT regulations or something similar, make sure you know the testing requirements in your state and applicable to your industry, and comply with them.
Applicants should not be tested for illegal drugs until after they receive conditional offers of employment. Applicants should not be tested for alcohol or legal medications at all unless the testing is required by law.
In your substance abuse policy, require employees to disclose when they’re taking any legal prescription or over-the-counter medications that could impair their ability to perform their jobs competently and safely. If an employee makes such a disclosure, you wouldn’t want to fire or require rehab because the medications are legal. The employee may also be taking the medication to treat an ADA-protected disability. If legal meds are preventing an employee from being able to do the job, you might need to consider reasonable accommodations, which could include temporary transfer to another position or medical leave, until the employee is safe to work again.
Your substance abuse policy should also treat “dishonesty” in connection with the drug test as a termination offense, without the opportunity for EAP. This is so even if you allow people who test positive to go through rehab and come back to work. Dishonesty in the context of drug testing would include substitution of a urine sample, adulteration of the sample, dilution of the sample, and more.
Your policy should also treat refusal to cooperate in the drug test as a termination offense, with no opportunity for rehabilitation. Refusal to cooperate would include failing to go to the testing site after being instructed to do so by management, or failing to produce a urine sample within a reasonable time with no medical excuse. (But be careful about the “no medical excuse” — “shy bladder” is a real condition.)
Consider reserving post-accident testing for employees whose actions or failures to act might have caused the accident, rather than testing every employee who is involved in an accident. And, whatever you do, don’t limit your post-accident testing to employees who have on-the-job injuries. Under many state laws, that could be unlawful retaliation based on the anticipated filing of a workers’ compensation claim.
If you suspect an employee of using illegal drugs but don’t have enough evidence for a reasonable suspicion test, don’t try to slip the employee into your next “random” selection. Employees sometimes sue, claiming that the selection was not random and that they were selected for discriminatory, retaliatory, or other illegal reasons. To prevail in that type of litigation, you will have to scrupulously maintain the integrity of your random selection process.
Use objective criteria for “reasonable suspicion” tests, and document your observations. For example, “Lulabelle came to work with dilated pupils, and she was slurring her speech, bumping into things, and a few times was just standing still and staring at the ceiling. When I called her into my office to ask whether she was all right, I noticed a strong odor of marijuana.”
Addiction to alcohol is a disability within the meaning of the ADA, so you can’t treat an alcoholic more harshly than the way you would treat a non-alcoholic who engaged in the same conduct. For example, let’s say you have two employees: John and Merry. John is an alcoholic. Merry is not. At your office party, they both get plastered and make fools of themselves. On Monday morning, everyone is chuckling about Merry’s antics. But John? That lush! How disgusting! And John gets fired for his bad behavior while Merry goes on her merry way. Under the ADA, John would have a valid claim of disability discrimination. He is being treated more harshly than Merry because of his alcoholism.
Addiction to illegal drugs is not protected under the ADA if the individual is still a current user. But if the individual is no longer a current user, then he would have ADA protection from discrimination. A recovering drug addict, like an alcoholic (current or recovering), would be entitled to certain reasonable accommodations such as time off to go to meetings with a counselor. That time off might also be covered by the Family and Medical Leave Act.
Really, really basic stuff
You probably know all this, but just in case . . .
Consider using a Medical Review Officer to review any positive test results and discuss with the applicant or employee whether there is a legitimate medical reason for the result. The only information you should get is whether the individual is or is not “OK to work.”
If you allow employees who test positive to go through EAP one time without being terminated, require them to sign a “Last Chance Agreement” before they return to work. This will ensure that they understand that any further positive drug tests will result in termination of employment.
Gee, I wonder what drug testing issues employers will have in 2030…
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.