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Oct 5, 2021
This article is part of a series called ER Trips.

Shortly after marijuana was legalized in Denver, I became an HR director for a construction company based right there in the Mile High City. The company had yet to update any policies regarding positive drug tests, and by Week Two I was thrown into the blaze to handle an employee drug test.

One of our drivers was transporting lumber from one job site to another when he got into an accident on the freeway in the company truck. The driver was sent to a local urgent-care clinic for a full physical and a standard post-accident drug screening. He called me after his drug test to tell me that he would test positive for marijuana as he not only used it recreationally but also had a medical marijuana card. 

Three hours later, sure enough, his drug test came back positive. I fired him the next day.

Not for the positive marijuana test, however. It was for the positive cocaine, alcohol, and methamphetamines also found in his system. But what if this worker had tested positive for only marijuana at the time of an accident or in the course of his employment? 

Court cases, such as Washburn v. Columbia Forest Productions Inc. (2006), set a precedent that employers did not need to make medical cannabis accommodations. However, as local laws continue to change employer accommodation requirements, companies are left scrambling for updated policies. 

The Americans’ with Disabilities Act requires that employers make reasonable accommodations for employees with disabilities. These accommodations may include time off for medical or mental health treatments. And with the usage of cannabis rising in those treatments across the United States, it’s crucial that employers get this right. 

Navigating employee relations and marijuana doesn’t have to be hazy. Your policies and practices should follow these guidelines:

Reasonable Suspicion

While your state may allow for the use of medical or recreational marijuana, an employer does not have to allow intoxication at work. It is crucial that you have a Reasonable Suspicion Policy implemented at all times. Such a policy allows for two members of management to check off certain criteria that indicate an employee may be intoxicated during working hours. Once both managers have filled out this checklist, protocols for drug and alcohol testing can ensue. (Here’s an example of a Reasonable Suspicion Checklist.)

When used correctly, this policy empowers HR and leadership to maintain the safest possible working environment. When misused, however, this policy can cultivate a culture of witch hunts. So be purposeful in how you roll this out, how you train managers, and the communication all employees receive about the intent of this policy. 

Training and communication should include messaging around the intent of the new policy and the reliance on purely impartial judgements. Make sure to include verbiage around not wanting to create a policed environment but a safe one. Weaponizing this checklist will result in toxicity that will be difficult to undo. 

Get a Lawyer 

A legal team is your best friend — and not just for terminations. While attorneys should be involved in all terminations, inviting them in as you create your state-specific policies is paramount to keeping you out of an employee-relations nightmare. Not only will a legal team advise you on your local laws and statutes; their impartiality can help reduce unconscious bias in the policy creation and enforcement. 

It is no surprise that people of color are disproportionately penalized for marijuana use (see “Racial Disparity in Marijunana Arrests”) and that disproportionate enforcement does not stop with the police. Your unconscious bias may lead you to create unfair policies or repercussions for people of color if you aren’t leveraging a legal expert to assist your decision-making. 

Unfair policies include immediate termination of an employee with a positive marijuana test result without a case review. Additional unfair policies might be masked as “zero tolerance” but in fact do not leave room for third parties, such as legal counsel, to provide impartial recommendations on discipline. Your opinion cannot be the only one upholding a policy. 

This isn’t a suggestion. It’s a requirement. Employee relations is about impartial, humane decisions, and when we know our disciplinary decisions statistically harm minorities, it’s time to be sure we have checks and balances to ensure good decision-making. 

Stop Talking

Listen, really listen to your C-suite and the rest of your HR team on where your company should stand on this issue. Also listen to an employee who tests positive for marijuana, and then listen to legal advice. Your opinion on marijuana and its use recreationally and medically do not matter. But your expertise in enforcing healthy and equitable policies does. If you want to avoid an EEOC claim, then you must be found completely impartial on all fronts. And it’s hard to be found impartial when you’re doing all the talking. 

Whether your employees are working from home or in the office, avoid an ER trip by preparing for positive drug test results now. 

This article is part of a series called ER Trips.