Marijuana legalization

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TPMS Hyundai Elantra – 2023

First and foremost, there isn’t a one-size-fits-all solution. Policies, procedures and practices must be customized based on many factors to include state laws, your personal beliefs regarding marijuana use, safety, customer service standards and more.

The following topics must be carefully considered when establishing policies and practices to not only comply with state marijuana regulations, but also in hiring and retaining a high-quality workforce.

To test or not test? Most employers have implemented some form of substance abuse testing policy. SESCO Management Consultants has been an advocate of substance abuse testing for as long as I can remember. I would have never thought after all these years I would say to a client, “It is recommended that you challenge your substance abuse testing policy as it relates to marijuana.”

Traditional drug testing policies happen at the pre-employment stage, the post-accident stage, at random and if there is a reasonable suspicion that justifies intervention. With the legalization of marijuana, we have recommended clients challenge their random and pre-employment testing practices, unless required by a federal or state law or Department of Transportation regulations.

I’ll never forget a few years ago, when a large client called requesting that we develop a very comprehensive substance abuse program, including random testing, for his business. He told me he vowed he was going to eradicate drugs in his workplace. After the program was implemented, the owner called me 30 days later. I asked him how the first round of random tests went. He said, “We had four employees test positive.”

He went on to say that his general manager of 30 years, his right-hand man, had tested positive for cocaine. He then asked me how he could keep him while terminating the other three who had tested positive. This created a difficult situation that potentially put the business owner at legal risk.

Pre-employment testing. As a matter of background, there are various types or different panels of drug tests to choose. These range from a five-panel test, up to a 14-panel drug test. The “panel” refers to either a drug or a family of drugs included in the test. As the panel levels increase, more types of drugs are typically screened. For example, a 13-panel drug test screens for 13 of the most frequently abused prescription drugs (Xanax, Fentanyl, Ritalin, Valium, etc.) and illicit drugs (cocaine, PCP, quaaludes, etc.).

The most common, least expensive test is a standard five-panel drug test which screens for five illicit drugs, including marijuana. (Sometimes screening for alcohol also is requested.) More and more employers are utilizing 10, 12 or even 13-panel tests.

We are finding that employers in many industries are not conducting pre-employment drug testing; are conducting preemployment drug testing, but are having marijuana dropped from the panel; or if the applicant tested positive for marijuana, are not considering it as part of the hiring consideration. More and more employers appear to be treating marijuana use like alcohol and ignoring off-duty recreational use.

These substance abuse testing policy changes are becoming more common because of the lack of reliable testing available to determine whether an applicant or employee is under the influence of marijuana. Unlike alcohol testing, which can clearly identify whether or not an applicant or employee is under the influence, marijuana testing provides for either a positive or a negative result.

Although research is conflicting, it is widely known that an applicant or an employee can test positive for using marijuana within the last 30 to 60 days. The challenge for employers is conducting pre-employment and random testing for marijuana use. You just don’t know when the applicant or employee used the drug. And with it being legal in most states in one form or another, testing for marijuana creates a number of “hoops” and processes that an employer must consider to avoid breaking the law.

Each employer must determine whether they wish to implement a substance abuse program to include pre-employment and random testing and/or to include marijuana. We are not recommending either/or and certainly if you do elect to conduct pre-employment and/or random testing to include marijuana, we can assist you in establishing a compliant policy. Safety and workers’ comp costs are still critical issues and a comprehensive substance abuse program can go a long way in reducing these significant costs.

Reasonable suspicion. Regardless of the legalization of medical and recreational marijuana, employers do not have to tolerate on-the-job use or intoxication. Reasonable suspicion testing is critical as employees can’t come to work impaired. Additionally, you owe it to the rest of your employees, who expect a safe place to work.

Most employers want to test based on reasonable suspicion and out of concern for the health and safety of their employees. It is ideal to train managers on ways to observe and determine whether someone might be under the influence. Please note the words “might be.” The employee does not have to be legally impaired to be tested.

If you reasonably believe that someone may be a threat to themselves or others in the workplace and they are under the influence, it is always best and safest to conduct a substance abuse test. If they are not under the influence and know they will test negative, the employee will typically cooperate. If the employee refuses the test, your policy should state they are voluntarily resigning, effective immediately. (Of course, if they test positive, you have options which should be thoroughly discussed with your HR department or a third-party advisor.)

Testing based on reasonable suspicion could be prompted by the following:

• Suspicious odors;

• Odd employee movements, such as staggering or twitching;

• Eyes that are dilated or watering;

• Unusual facial expressions and a flushed complexion;

• Confusion and slurred speech;

• Irritability and argumentativeness;

• Drowsy, slow or unusual poor performance;

• Abnormal behavior for that individual.

Post-accident is another test that is strongly recommended. Most workers’ comp programs either recommend or require a workplace substance abuse program that includes a testing protocol. If an employee tests positive after an accident, this will go a long way in a complete denial of workers’ comp and as such, reducing significant employer liabilities and costs.

Most employers will implement a basic threshold of when to test post-accident. Basic papercuts and the like typically are not sent for post-accident testing. More serious accidents and/ or injuries are sent for tests. These can include back strains, cuts, dropping parts or tools on feet, back and body strains, slip and falls with subsequent pain, etc. You are better off taking an employee to be tested and/or taking them to the local emergency room or urgent care center than not.

Develop Effective Systems

In today’s litigious environment, dealerships must have effective and compliant human resource management systems to include:

• An employee handbook which, most importantly, reflects state laws;

• Job descriptions that identify the essential functions of a position, plus its physical and mental requirements in order to determine reasonable accommodations;

• A basic hiring system that includes three to five behavioral, open-ended interviewing questions, in addition to a background and reference check process;

• Safety and health policies;

• Open communications.

Dealerships are very familiar with these basic tools and systems, but many times ignore or delay their development and implementation or allow systems to go stale and out of date. You cannot be reactive, but must be proactive in developing and maintaining these systems.

Wrongful termination lawsuits and legal intimidation are on the rise, especially among younger generations. Many believe they “know” their rights and are not afraid to contact a federal or state agency or a lawyer.

However, as stated above, compliance is attainable and affordable and an organization can attract and retain excellent employees which, frankly, removes a lot of these employment liability issues. But this must be a priority.

The employer-employee relationship is ever-changing. To navigate the challenges, SESCO recommends the first step you should take is to have a competent employment and HR specialist conduct a review of at least your employee handbook, policies and procedures. You will then have the peace of mind to at least understand where you are in terms of compliance, as well as effective policies and procedures in place. Then you can establish a roadmap to address identified needs.

Bill Ford is the president and CEO of SESCO Management Consultants, the oldest human resource and employee relations consulting firm in America, with many tire dealership clients. Ford can be contacted at (423) 764-4127 or bill@sescomgt.com.

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