Pubdate: Wed, 23 Apr 2014
Source: Bakersfield Californian, The (CA)
Copyright: 2014 The Bakersfield Californian
Contact:  http://www.bakersfield.com/
Details: http://www.mapinc.org/media/36
Author: Holly Culhane

HAZY MARIJUANA POLICIES ENDANGER EMPLOYERS, WORKERS

It's not surprising that businesses and their employees are in a bit
of a haze over recent legislative and voter-approved moves to legalize
marijuana use.

About 20 states, including California, have legalized the use of
marijuana for medicinal purposes. And in 2012, voters in Colorado and
Washington went a step further by legalizing "recreational" use, as
well.

These actions place states in conflict with federal laws, which still
regard marijuana as an illegal drug. They also created confusion in
the workplace, including in Kern County.

An increasing number of local business owners and managers are asking:
Can we still enforce zero-tolerance drug policies and require a
drug-free workplace? Like other human resources specialists, I answer
"yes."

But there is no doubt that lawsuits challenging these drug policies
are looming and employers must proceed cautiously.

Some states have not addressed workplace issues regarding marijuana.
But in other states, including California, laws and court rulings
support an employer's right -- and even obligation -- to prohibit use
or possession of marijuana in the workplace. It is the use of
marijuana outside the workplace that has some employers perplexed.

Just like policies regarding the use of alcohol and legally prescribed
drugs, showing up to work "under the influence" of marijuana can and
should be prohibited. Impaired workers pose a danger to themselves,
their colleagues and often the public.

The Occupational Safety and Health Act's "general duty clause"
requires employers to maintain safe workplaces. In the course of
investigating workplace accidents, OSHA frequently has issued
citations to employers who had workers with illegal drugs in their
systems.

The difference between being "impaired" and an employee showing up for
work with the presence of marijuana in his or her system -- residual
amounts from medical treatments, or in some states, recreational use
- -- will be increasingly vulnerable to future court challenges.

Further complicating matters for employers are federal requirements
that are often tied to services or product sales that require
contractors to maintain drug-free workplaces that are in compliance
with federal laws.

I offer the following advice to employers squeezed between the rock of
more lenient state laws and the hard place of an unyielding federal
position that marijuana use and possession is illegal.

* Review your company's written substance abuse policies. If you do
not have written policies, hire a specialist in this area to create
them. Policy wording must remove confusion. For example, a policy
should not make a general reference to "illegal drugs." Rather it
should ban drugs considered to be "illegal under federal and state
laws." Go the next step and state that it includes marijuana.

* If you have customers, such as the federal government, that require
contractors to maintain drug-free workplaces, include that in the policy.

* Specify what a "drug-free" workplace means to employees. No doubt
that will prohibit employees from showing up for work "under the
influence." Likely it will also mean having drugs, including
marijuana, in a worker's system.

* State when employees will be drug tested. Most companies require
drug testing of applicants prior to employment. When will drug testing
be done after employment begins? Will that be following an on-the-job
accident? What will be the consequences? Will the consequences be
applied to both "impairment" and "presence" of a drug in a worker's
system?

* Communicate the company's drug policy, including its treatment of
marijuana, to workers and managers. If employers are confused, imagine
what workers are thinking.

The most important advice I give to employers in these litigious times
is to develop and enforce drug policies with the help of specialists
and attorneys. Drug-free workplace policies and enforcement must
comply with state and federal laws.
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MAP posted-by: Matt