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Recruiting Daily - What Every HR Pro Needs To Know About Marijuana in the Workplace

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What Every HR Pro Needs To Know About Marijuana in the Workplace

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Recruiting Daily - What Every HR Pro Needs To Know About Marijuana in the Workplace

  1. 1. So Are Your Employees HIGH? Kate Bischoff SHRM-SCP/SPHR
  2. 2. About Me • Suffer from law degree • Human Resources Officer for the U.S. Department of State in Jerusalem & Zambia • Got the fancy letters • Started tHRive Law & Consulting • Adjunct Professor of Mitchell Hamline’s HR Compliance Certificate Program • Compliance doesn’t always mean no • @k8bischHRLaw
  3. 3. What We’re Going to Cover… • Current status of marijuana in the workplace • New laws about marijuana • The impact of these laws on the workplace • Tips on how to handle issues
  4. 4. SURPRISE! Marijuana has been in the workplace for decades
  5. 5. How Concerned Are Your About Marijuana in Your Workplace? Not at all Somewhat Willie Nelson & Snoop Dog might be good cultural fits
  6. 6. Federally • Marijuana is a Schedule 1 drug • Federal contractors: • $100K in contract or grants • Drug Free Workplace Act applies • BUT DFWA does not require drug testing
  7. 7. Noffsinger v. SSC Niantic Operating Company • D. Conn., Sept. 2018 • Connecticut law (PUMA) prohibited employers from not hiring or terminating an employee who used marijuana for medical purposes • Plaintiff won summary judgment that she was not hired because of her prescribed use
  8. 8. Illegal States • Would be able to prohibit everyone • Testing provides no controversy • Absent a CBA or other “good cause” requirements, would be able to not hire or terminate
  9. 9. Medical Marijuana States • Marijuana is permitted only with a prescription by a medical professional • Sometimes limited on how imbibed • Tension between obligations to reasonably accommodate & drug-free
  10. 10. Coats v. Dish Network • Coats is a quadriplegic • Medical marijuana for pain & only after work or on weekends • Dish had a drug testing policy • Coats tested positive • Terminated • All the way to the Colorado Supreme Court • Because marijuana was not lawful under federal law, Dish could terminate
  11. 11. Toke-n States • Adults can obtain marijuana for medical or recreational use • Incr-edible amount of ways to imbibe • To be blunt, marijuana is readily available
  12. 12. What’s an Employer to Do? • What kind of state are you in? • What is your goal? • What is your philosophy?
  13. 13. Types of Employees • What industry? • Have safety sensitive positions? • Do you see your employees? • Do you want a testing policy & procedure?
  14. 14. Industry Considerations • Drivers • Work is dangerous • You don’t see your employees • Contracting where contracts have requirements • Being stoned could impact the safety of employees or others
  15. 15. Do You Test? • Yes • Yes, but for only some positions • Considering testing • No
  16. 16. Test? • Marijuana testing is tricky • Stored in fat • In systems for a long time • Can’t tell if under the influence at this particular time
  17. 17. Policies • State specific • Detailed • Explain circumstances giving rise to test • Pre-employment • Reasonable suspicion • Random
  18. 18. Should You Test for Marijuana? • Nature of THC • Public acceptance • Public health considerations • Could affect recruiting • Could affect retention • Options to not test for it
  19. 19. Who Should We Test? • Be deliberate about who you test • Only those who need it • Applicants • Employees • Have a justification for every position • Never select a test based upon the identity of an individual unless you have reasonable suspicion that this particular individual is stoned
  20. 20. You Test, Now What? • Positive for THC • Ask the applicant/employee about the positive test • What if the answer relates to a medical condition? • What if the answer relates to a trip to a state where it is lawful?
  21. 21. Scenario – Jimmy Jimmy is an applicant for a for a forklift driver in your warehouse. He has three years experience, is a veteran & interviewed really well, even offering some suggestions on improving routes. He passes the background check, but tests positive for THC. When you ask him about it, he tells you he has PTSD & has a prescription.
  22. 22. Scenario – Maria Maria works in an office for a federal contractor with random drug testing. She tests positive for THC. When asked, she explains that she went to Las Vegas for her best friend’s bachelorette party. While she did not smoke any joints – this job is so important to her – she was in a room that was heavy with marijuana.
  23. 23. When Under the Influence • Physical evidence • Plastic baggies • Rolling papers • Other paraphernalia • Physical signs • Very bloodshot eyes • Slowed speech • Impaired coordination • Behavioral symptoms • Inability to concentrate • Disorientated • Panic reactions • Careless attitude
  24. 24. Alternative • Always take disciplinary action for behavior & unprofessionalism • Signs of being high are also unprofessional • May be cleaner disciplinary action • Avoid some policy conundrums
  25. 25. Questions?? Kate Bischoff (612) 361-7707 (320) 249-9269 kbischoff@thrivelawconsulting.com thrivelawconsulting.com @k8bischHRLaw

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