This document discusses issues related to marijuana use in the workplace. It notes that marijuana has been used by employees for decades but that laws around its use are changing. Employers need to consider their industry, job roles, and state laws to determine appropriate drug testing and policies. The document provides scenarios and considerations for how employers should respond to positive drug tests or employee disclosures of marijuana use.

1. So Are Your Employees
HIGH?
Kate Bischoff
SHRM-SCP/SPHR

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. 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. SURPRISE!
Marijuana has been in
the workplace for
decades

5. How Concerned Are Your About
Marijuana in Your Workplace?
Not at all
Somewhat
Willie Nelson & Snoop Dog might be good cultural fits

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. What’s an Employer
to Do?
• What kind of state are you in?
• What is your goal?
• What is your philosophy?

14. Types of
Employees
• What industry?
• Have safety
sensitive
positions?
• Do you see your
employees?
• Do you want a
testing policy &
procedure?

15. 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

16. Do You Test?
• Yes
• Yes, but for only some positions
• Considering testing
• No

17. 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

18. Policies
• State specific
• Detailed
• Explain
circumstances
giving rise to test
• Pre-employment
• Reasonable
suspicion
• Random

19. 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

20. 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

21. 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?

22. 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.

23. 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.

24. 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

25. Alternative
• Always take disciplinary action for
behavior & unprofessionalism
• Signs of being high are also
unprofessional
• May be cleaner disciplinary action
• Avoid some policy conundrums

26. Questions??
Kate Bischoff
(612) 361-7707
(320) 249-9269
kbischoff@thrivelawconsulting.com
thrivelawconsulting.com
@k8bischHRLaw