Haynsworth Sinkler Boyd’s Chris Gantt Sorenson and Perry MacLennan recently discussed “Marijuana in the Workplace: To Test or Not to Test” on the Survive HR podcast. In the podcast, Chris, Perry, Kelly Schieb and Steve Nail debate their different opinions on the subject of whether any form of marijuana testing makes sense for employers regardless of whether marijuana use is legalized or not. Listen for the reasons the four offer for and against testing in all sorts of situations, and see where they came to a consensus.

Perry summed up the issue:

If you are going to drug test in the workplace for cause (from a co-worker tip, an accident in the workplace, etc.), a positive test for marijuana will not tell you a lot. If you are making disciplinary decisions around this, you will need more than a positive test to determine the level of impairment. You will need more evidence; for instance, finding a joint or noticing an employee is visibly high at work. HR professionals have to make a determination: What type of workplace are we and how are we going to approach this? Is a pre-employment marijuana screening necessary? Is it something that we want to do? Regardless of which state you are in, even in states where it’s illegal, like South Carolina, some employers have done away with testing. If you have safety-sensitive positions (manufacturing and construction industries, for example), you will have the latitude to conduct drug testing, and that is a good idea.

The highlights of the debate centered around three central questions:

Regardless of whether marijuana is legal in your jurisdiction, what should employers do about marijuana in the workplace?

Should employers still include marijuana on its panel in reasonable suspicion and after accident situations? Even in states where marijuana is legal, apply what you already know in regards to what level is too much, similar to how you treat alcohol use under the reasonable suspicion analysis. No one should work while impaired, regardless of why they’re impaired. Train managers to look for behaviors that may indicate an employee is under the influence of marijuana in addition to alcohol or other substances. Chris explained,

If you think in terms of reasonable suspicion (for example, an employee comes to work under the influence of any sort of substance) and you have reasonable suspicion the employee is under the influence, then you test the employee to see if they’re impaired.

If you are going to test or conduct for-cause testing or after accident testing, how do you determine if someone is under the influence of marijuana? Is there a general standard or cut-off as to what an impairment level would be?

There are no limits yet for the level of THC that indicates impairment and marijuana detection is not indicative of impairment as it can remain in someone’s system for 72 hours up to a month.  However, coupled with reasonable suspicion, the test would act as an additional fact to confirm the employee is under the influence at work, something that the ADA does not protect. The DOT’s reasonable suspicion guidelines offer insight into what managers should look for with regards to marijuana and can be applied to inform employers even outside of the context of DOT.  But it does not matter what substance the employee is on, if you see a particular behavior and then pair it with a test, either for reasonable suspicion or after an accident, those two facts confirm what the employer has observed. A standard for the level of impairment is not necessary.

For those employers considering eliminating marijuana testing entirely, be mindful of worker’s compensation insurance policies in case of an accident. Remember to have new hires sign an acknowledgment of the procedures when they start, so they know about the policies from day one.

Employers don’t want their employees to be impaired at work. Should employers include impairment language in their policies to make it clear that no level of impairment is okay?

Any policy outright prohibiting marijuana use in states where marijuana is medically legal will run afoul of the Americans with Disabilities Act. This poses an interesting quandary since federal law bans marijuana and any use, even for medicinal purposes, is illegal. The ADA is a federal law so you would think that outright prohibition regardless of state law is permissible. However, federal courts have already interpreted an outright prohibition on marijuana use where it is approved medicinally violates the ADA if the use is in conjunction with a prescription and the employee is able to perform the essential functions of the job. Employers cannot have a policy that prohibits its use at work. Instead, approach it as you would the use of prescription drugs and whether or not it will interfere with the ability of an employee to do their job safely.

If you include impairment language in your policies, you also need to include language to accommodate for ADA.

Having a policy for reasonable suspicion and a policy for after-accident testing streamlines everything.

Click here to listen to the entire conversation on the Survive HR podcast.

HR Professionals – Chris and Perry’s session on Marijuana in the Workplace kicks off the first-ever SC SHRM virtual conference on September 21 at 9:45-10:45. The session will cover these topics more in-depth and provide employers with concrete solutions to addressing the fluid legalization of marijuana issue.

If you have questions about this topic or other employment law matters, please contact Chris or the HSB Employment Law practice team.