As more jurisdictions legalize marijuana, employers face the challenges of determining when employees are impaired and maintaining workplace safety. (Photo: Shutterstock)
The debate over the dangers of marijuana continues while 28 states and the District of Columbia have legalized its use to some degree. But for employers, the issue is much more complicated. They’re faced with balancing workplace safety with employee off-duty conduct.
According to a new whitepaper from Sarah Sullivan, Lockton Companies’ Risk Control Services Expert, 60%of the public currently supporting legalization efforts. Surprisingly, the greatest increase in acceptance is with people age 55 and older, based on a recent study of Medicare enrollees who were using medical marijuana.
If you’re an employer with serious safety concerns — in a manufacturing plant or school bus company, for example — whether your employees use marijuana, legal or not, can have significant repercussions on your business. What do you do?
In her whitepaper titled “Support for Grass Grows: 4 Steps to Keeping Workplaces Safe with New Marijuana Laws,” Sullivan recommends that employers focus on employee performance indicators as well as their hiring and training processes. By maintaining the focus on performance, employees see safety as an important component of the company’s culture.
Sullivan suggests the following four steps that employers can take to keep workers safe.
Related: Insurance implications of legal marijuana: Questions continue to roll in
1. Review job descriptions and ask questions
When reviewing job descriptions, employers should ask whether the off-duty use of marijuana would affect an employee’s ability to perform the job duties. If so, the employer should ask whether a marijuana user could be accommodated in the position safely.
The job description should include all the duties and responsibilities of the position, not just the essential functions. Some states have laws stating that if an employee who uses medical marijuana can’t fulfill any or all of the job responsibilities, the employer is not required to accommodate the use.
Under the Americans with Disabilities Act (ADA), an employee who is a medical marijuana user could argue for an accommodation based on a disability. Employers should work with their human resource department and legal counsel to ensure that the job descriptions and accommodations policy meet the ADA’s requirements.
Related: 5 developments impacting medical marijuana in workers’ compensation
2. Train managers on ways to recognize impairment
Managers need to be trained on what to look for and how to recognize an impaired employee. They also should be trained on company procedure and processes for how to document their observations.
This training will be critical in case a workplace accident occurs. Employers need to determine whether there was a drug in the employee’s system at the time of the incident, what level of the drug was present and what the employee’s level of impairment was.
Related: Balloon pilot who killed 16 in Texas was on drugs, had many DWIs
3. Determine whether you’ll implement drug testing
Remember that the goal of drug testing is to determine whether employees are impaired and unable to perform their job duties, not merely to determine the presence of drugs in an employee’s system.
Each employer must decide for itself — after consulting with the human resource department and legal counsel — whether drug testing is the best method to determine when an employee is impaired or intoxicated.
Note that in this situation, you’re considering for-cause drug testing, which is different from pre-employment drug testing. The policies for each type of drug testing should be spelled out carefully and explained to managers and employees.
Related: Tackling the opioid epidemic
4. Consider alternatives to drug testing
Some employers use psychomotor testing as an alternative to traditional drug testing. Psychomotor tests measure the employee’s reaction time and coordination, which will provide immediate and accurate results directly related to the employee’s job performance.
According to Sullivan, organizations that use psychomotor testing over drug testing reported that the psychomotor testing improved safety up to 82%, and some reported a decrease in accidents up to 50 to 75%, depending on the industry.
Related: Effective safety training: Are your employees practicing their mistakes?
John is a Jacksonville native who grew up on the First Coast. He graduated from Bishop Kenny High School in 1975 and went to college at Florida State University where he completed a 4-year program in 3 years. John graduated from the Florida State University College of Business in 1978 and went straight into Florida State University College of Law. While in law school, John earned a position on the prestigious Law Review Board serving as its Business Editor. As a law student, John studied in the Oxford program. He also interned with the Florida Legislature working in the Florida House of Representatives Criminal Justice Committee. John was admitted to the Florida Bar in 1981.
John began his legal career as a law school intern in the State Attorney's Office in Jacksonville in 1981. After his internship, legendary State Attorney Ed Austin hired John as a full-time Assistant State Attorney for the Fourth Judicial Circuit (Clay, Duval, and Nassau Counties). As a prosecutor, John tried jury and non-jury trial on charges ranging from DUI to Murder.
In 1983, John moved from the State Attorney's Office to begin his career in private practice. He has practiced law for 30 years on the First Coast. For the last 20 years, John and his family have made Clay County their home.
John limits his practice to personal injury and disability cases. While there are many fine attorneys in Clay County, John is one of only a few Clay County attorneys who limit their practice to personal injury and disability cases. John takes pride in helping clients resolve injury claims in ways that avoid the stress, uncertainty, and the expense of unnecessary litigation.
John is the past President of the Clay County Bar Association and has served on the Board of the Clay County Bar Association from 2009-2013. He is an active member of the Florida Bar, and the Federal Bar of the Middle and Southern Districts of Florida. He is also a member of the American Association of Justice, the Florida Association of Justice, the National Organization of Social Security Claimants' Representatives, and the National Organization of Veterans' Advocates.
Service to the Community
John is involved in the Clay County Community serving as a member and Director of the Rotary Club of Orange Park, of the Clay County Bar Association, and the Putnam County Bar Association.
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