How to Deal with Drugs in the Workplace
Sandy has often remarked, "In HR, it’s not so much what you do, as how you do it." Under most existing regulations, employers have the right to require a drug test whenever, in the opinion of management, this is necessary. In most cases, this means that employers have reasonable suspicion that an employee is coming to work under the influence of illegal drugs.
Reasonable suspicion can mean glassy eyes, slurred speech, difficulty in maintaining balance, frequent unexplained absences during the day, or numerous trips to the rest room. You should always have some other person drive the employee to the testing laboratory, in order to avoid the possibility of an accident and to maintain the "chain of custody" of the test.
Employers have the right to prohibit employees from coming to work under the influence of illegal drugs and from bringing illegal drugs into the workplace or from dealing in illegal drugs at work. Employers should have a written policy in the employee handbook that covers these points. Employers have the right to discipline or dismiss employees who come to work under the influence of illegal drugs (whether that’s the best alternative is another question – we should always discuss the alternatives ahead of time).
However, a couple of new wrinkles have made their way into the workplace and employers need to know about them when developing drug policy. One wrinkle is that some states have legalized or de-criminalized the use of marijuana in certain amounts. Colorado and Massachusetts are examples.
The second wrinkle is that some states like California, Michigan, Maine and Montana have legalized medical marijuana. Florida is on the verge of doing so, as soon as the legislature finalizes the regulations, and a number of other states are lining up to follow suit.
Further, there is such a thing as "synthetic marijuana." It’s not real marijuana but it has a similar effect when consumed and, according to numerous reports, can be extremely dangerous.
So, while every situation is different, and while we would want to consider all of the circumstances in each case, here are some thoughts about Scenes I, II and III.
Scene I – Absent extenuating circumstances, the employer would have a solid case for dismissal – (a) the employee came to work exhibiting irregular symptoms, (b) the employer had someone drive him to the laboratory for a drug screen, and (c) the drug screen came back positive. That’s not to say that you should go out and "win one for the Gipper," but it is to say that, in most cases, the preponderance of information would support a dismissal, if that’s what you choose to do. Even if marijuana is "legal" in your state, the employee still is not allowed to report to work under its influence.
Scene II – Even with a prescription for medical marijuana, the employee does not have the right to come to work under the influence of drugs. However, our recommendation is to handle this a bit more carefully. First, have the employee bring you a doctor’s statement that the employee is able to perform the essential duties of his position, with or without accommodation. Second, remind the employee that, even with the prescription, he may not come to work under the influence of marijuana. Third, inform him that a subsequent incident could result in further disciplinary action that could include dismissal. I don’t know that we can ask the employee to produce the prescription, as this raises a number of ADA , HIPAA and privacy issues. The important point is not so much that the employee has a prescription as it is that he is not allowed to report to work under the influence of marijuana, prescribed or otherwise.
Scene III – Synthetic marijuana produces a similar effect as organic marijuana and your drug policy can and should include a prohibition on possessing or dealing in synthetic marijuana at work. In this case, you should talk with the employee and, absent extenuating circumstances, you would have a strong case for dismissal on the basis of "possession." Most traditional drug screens have not been able to test for the presence of synthetic marijuana but this seems to be changing.
We recommend that you inform the testing laboratory that you use that you want them to include synthetic marijuana.
Please contact Sandy or your Seay Management Consultant if you have any question about dealing with drugs and alcohol at work, and visit our web site at www.seay.us for management advice and guidance on other employee issues. We appreciate having you as a valued client of our firm and look forward to talking soon.