Proposed Marijuana Legislation Leaves Employers in the Weeds

While we hear a lot about the benefits of legalizing recreational marijuana—the business opportunities it provides, expungement of criminal records, where dispensaries will be located and the like—no one is talking about the human resource ramifications. Yes, decriminalizing recreational marijuana is a step forward in many ways, but there are holes in the legislation that leave lots of questions for businesses.

As recreational use of marijuana loses its criminalization and stigma, business owners and human resources need to be extra cautious as they prepare for implementation to manage risk and employee behavior.

Recreational marijuana should be treated like alcohol. Many, if not most, employers will need to have zero tolerance policies, especially since the perception of marijuana is different and this bill has drawn a lot of attention to the use of cannabis. While it is universally accepted that it is not permissible for an employee to come to work intoxicated, it needs to be clear that is not acceptable for them to come to work “stoned.”

It may seem silly to have to say that, but marijuana is perceived to be not as impairing and harmful as alcohol. Business owners will be liable for any damage an employee does while on the job and possibly off the clock as well.

Rules around the “smoke” break will need further clarification, definition and communication to employees. While it may be acceptable to smoke a cigarette in certain areas, just because marijuana is legal, doesn’t mean it will be acceptable. Do you allow beer and wine in your lunchroom? The same concept—you need to manage your business’s risk.

Those employers with employees who are behind the wheel—drivers of any kind, forklift operators and the like—need to pay special attention to the policies and procedures they implement, since the effects of recreational marijuana may interfere with how these individuals perform their job functions. Blue collar professionals who operate power tools and medical staffs also need specific guidelines to manage risk and ensure continued impairment-free, top-notch performance.

To manage this risk fairly among employees, there is some important information missing from the proposed legislation. Mainly, what determines impairment?

Determining Impairment

Is there a scientific way to determine impairment from marijuana without being discriminatory to protect employees and employers? What is an acceptable legal limit, if any?

If an employee comes to work and is suspected of consuming too much alcohol, there are scientific tests—the breathalyzer or blood tests—that can be done to prove innocence or guilt. There is no guideline for marijuana intoxication mentioned in the proposed legislation. This leaves employers in murky waters with no legal ruling to stand on if they suspect an employee is impaired.

The tricky part of testing marijuana is that it reacts differently with every body. One person can use it and have a different reaction than another. The activation and duration of the reaction also vary from person to person and method of consumption.

Unlike alcohol testing, which is a number, marijuana testing isn’t as simple.

Tests can show positive for marijuana for up to 30 days after use, depending on a number of factors such as length of use or strength of the product. Reports show the body absorbs marijuana within minutes of inhalation. THC, the main compound in marijuana, is stored in the body within organs and fatty tissues and exits through urine.

Current proposed wording in the legislation prohibits employers from firing or taking any adverse action against any employee because an employee does or does not smoke or use marijuana items, with vague wording that states “unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.”

What does this mean? How is a business owner supposed to deal with this vague guideline?

Lawmakers need to establish a standard and offer specific guidelines employers can go by, instead of leaving it up to each individual business to determine what is a “rational basis,” which leaves the door wide open for wrongful termination and discrimination lawsuits.

Management Training

States should develop training standards for employers to use as guidelines when training supervisors and management on the signs of marijuana-related impairments. A state-wide standard allows for a level playing field across all employers.

Supervisors observations will be key to determining if employees are under the influence. These supervisors will need very specific guidelines as to what is acceptable behavior and what actions might be clues to an employee who is impaired. Supervisors will also need training in how to approach and have these types of sensitive conversations with their employees to minimize the risk of a false accusation or wrongful termination.

At workplaces all over New Jersey, protocols that protect the rights of both the employee and employer will also need to be put in place to deal with an employee who is suspected of being under the influence.

Jim Bell, Sr., founder & CEO of Abel HR

Cranbury, NJ

=