Why is it that more than 2.3 million people in the United States use medical cannabis as of August 2017, but nearly half of small businesses don’t have a policy about cannabis use in the workplace?
According to a survey by Employers Insurance, a workers’ compensation carrier, as reported by MarketWatch, 10 percent of small businesses have experienced employees under the influence of the controlled substance.
The survey polled more than 500 businesses around the United States (in states with varying legalization laws) that employed fewer than 100 people.
The survey stated that about 80 percent of business owners were unconcerned with their employees showing up under the influence, but what happens in the case of a workplace accident? What about legal issues in random drug testing? What if work doesn’t get done?
Why You Should Impose a Cannabis Policy
“All employers regardless of size should have a drug and alcohol policy,” said Todd Wulffson, an attorney at Carothers DiSante & Freudenberger who represents employers in California, to MarketWatch.
Wulffson said that if an incident involving cannabis happens in the workplace, the U.S. Occupational Safety and Health Administration will likely step in, which means federal law trumps state law. In this circumstance, business owners should prepare to “take out your checkbook.”
Wulffson said a clear policy on the employer’s stance on cannabis use, especially one that outright bans being under the influence at work, no matter the state’s laws, is the best defense from federal oversight.
When Medical Cannabis Is Necessary During Work Hours
In 2008, a RagingWire Telecommunications employee in California was fired for failing a pre-employment drug test that found traces of cannabis in his system. However, the drug was prescribed.
The employee sued the company for violation of the U.S. Fair Employment and Housing Act, which prevents employees from discrimination based on mental and physical disability. The court ruled against the employee, stating that “an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.”
In 2010, a quadriplegic Dish Network employee in Colorado was fired after failing a random drug test that found cannabis in his system. The medical cannabis was prescribed to control leg spasms.
In court, the question remained: Was his use admissible under the state’s Lawful Off-Duty Activities Statute, which states that employees cannot be fired for legal activities outside of the workplace? The court ruled in favor of Dish Network, determining that the statute covered state and federal laws, thus his cannabis use was illegal.
While the court ruled in favor of the companies in these two cases, the use of medical cannabis remains a gray area for many judges.
What You Should Do
The best solution for business owners is to implement a detailed, updated drug policy; new human resources programs; and training for all leadership positions.
It’s important to include information about forewarning employees of random drug testing and testing under reasonable suspicion. (Failure to disclose is illegal in many states and can result in legal battles over an invasion of privacy.)
Employers need to understand state and federal laws, corporate and company culture, and their employees’ medical history.
Once a clear and concise policy is administered, communicate with all current and potential employees about its details. Let employees know that their qualifying condition for medical cannabis will be accommodated; however, being under the influence at work is a risk to the company and other employees.
Offer accommodations like flexible schedules, work-from-home or telecommuting opportunities, and healthcare. For more solutions, check out Inc.’s article, How To Deal With Cannabis Use As An Employer.
You can also subscribe to Peninsula Alternative Health’s newsletter for more helpful information about medical cannabis in Maryland.