Thursday, October 15, 2015
The title of this post is the headline of this new MarketWatch article. Here are excerpts:
If you’re a small-business owner and marijuana has been legalized in your state, should you care?
The short answer is, yes. Nearly half of small businesses don't have a policy about cannabis use in the workplace and 10% have had employees show up under the influence of a controlled substance at work, according to a survey released Wednesday by Employers Insurance, a workers’ compensation carrier. The study polled 501 businesses nationwide that employed fewer than 100 employees, in states with varying legalization laws....
A wide majority of respondents — 81% — said they were “unconcerned” about employees coming to work under the influence, but in states that have legalized marijuana use, a lack of policy could lead to major legal headaches.
“All employers regardless of size should have a drug and alcohol policy,” says Todd Wulffson, an attorney at Carothers DiSante & Freudenberger who represents employers. Wulffson says that if an incident involving marijuana happens in the workplace, the Occupational Safety and Health Administration, which is a federal agency, is likely to step in, and the federal illegal status of the drug will trump state law.
In which case, “take out your checkbook,” he says. Wulffson says a clear policy on the employer’s stance on cannabis use — especially one that outright bans being under the influence at work, no matter the state’s laws — is the best defense from federal oversight. Substances derived from cannabis, such as cannabidiol (known as CBD) products, that don’t contain THC, a psychoactive component of the plant, should be admissible in the workplace, Wulffson says, since they are more likely to be prescribed for a serious medical condition and don’t impair brain function....
[M]arijuana’s status continues to be a gray area in legal proceedings. To avoid going to court and potentially losing a hefty workplace lawsuit, business owners should construct and communicate a detailed drug policy.
An important aspect to include in a workplace marijuana policy, Wulffson says, is drug testing. In most states it is legal to drug test job applicants if they have forewarning. Random drug testing of employees, however, is illegal in many states, like California, and employers can be sued for invasion of privacy if they implement them. In most cases, employers can drug test under reasonable suspicion of an employee under the influence, and a policy that makes that clear to employees helps avoid invasion of privacy suits.
“Employers need to understand the state that they’re in,” Wulffson says. “They need to understand corporate culture, and should have a marijuana policy while it is illegal under federal law, and it should be that you can’t be under the influence at work.”