So your employee showed up to work stoned.
Best-case scenario for dealing with such a predicament: A policy against THC intoxication in the workplace is written in the company's employee handbook and must be followed.
If not, it is better to ask for the blow to pass through the joint. There's not much you can do about it.
Minnesota's legal marijuana law, enacted last year, goes far beyond licensing growers and sellers. Now that new rules have been enacted about who can conduct marijuana tests and when, these rules apply to all businesses. With some exceptions, the law protects employees who smoke marijuana on their own time and prohibits pre-employment and surprise inspections.
However, employers can prohibit their use during work hours if they wish.
“Everyone should really have a policy: You can't get drunk on the job,” said Jared Reames, an attorney with Schulman Bousquet Reames who specializes in cannabis law. “Why would you want to deal with that liability as an employer? A person could get hurt or just do a bad job, and that could lead to liability as well.”
Whatever the rules are, they must be in writing. Company policies that may have ignored marijuana or lumped it in with other drugs in the past will need to be updated to reflect new laws and norms. If the policy only refers to “alcohol and illicit drugs”, as some policy templates do, there are no rules regarding cannabis.
“Workers need to know that they cannot eat food for lunch and return to the office,” Larry Morgan, president of Orion HR Group, wrote in a guide for state CPA associations. “Employers must deal with the current state of the world and not use outdated drug and alcohol policies.”
Test not guaranteed
Testing for THC, the main intoxicating compound in marijuana, is different from testing for alcohol. Unlike the snapshot of intoxication that a blood alcohol test provides, THC can remain at detectable levels for weeks after use. Therefore, testing is not a reliable method to determine marijuana intoxication at this time.
“Workplace drug testing only measures whether you have recently used drugs, not whether you are high at the time of the test,” Morgan wrote. “Objective and observable behavior is important in supporting adverse employment actions due to level of use or intoxication.”
For many jobs, employers can require testing for cannabis use, but only if chronic use or intoxication is suspected to have contributed to the injury or accident.
Suppose an accident occurs in the workplace or an employee's performance declines, clearly showing signs of high job performance. Under state law, this means the employee “does not possess clear intellect and self-control.” If not, employees will. ” What happens next depends, in part, on your employer's policies. Employers must make employees aware of this policy and obtain their consent to enact it.
“Under Minnesota law, an employee who does not consent to a reasonable suspicion drug test or post-incident test will be considered positive and will be provided with evaluation and treatment prior to termination,” Morgan said. “Additionally, evaluation and treatment should be provided to employees who test positive for drugs.”
The Bureau of Cannabis Control says that testing rules and penalties for violations of regulations “must be set out in writing and included in the employer's written cannabis testing or drug and alcohol testing policy.”
Some broad categories of jobs may still require pre-employment and random drug testing. Police officers, firefighters, federal employees, teachers, medical professionals, and other jobs that involve children and vulnerable adults are all subject to testing if employers choose to require it. Some jobs, such as truck driving, require marijuana testing as required by federal law.
“Safety Sensitive” positions may also undergo pre-employment and random THC testing. According to the law, this applies to any job, including supervisory roles, where “an impairment caused by the use of drugs, alcohol, or cannabis threatens a person's health or safety.”
Although the wording is vague, an employer's policy can be very specific.
“This could include people walking on rooftops, performing surgeries, working with propane tanks,” said Carol Moss, a cannabis industry attorney at Hellmuth & Johnson. . “The wrong action there can actually cause harm.”
Employees should know that THC from cannabis, which is currently readily available in Minnesota in edibles and beverages, will be detected on drug tests in the same way as smoking marijuana.
Medical marijuana patients have special protections under state law because, in most cases, employers cannot discriminate against registered medical marijuana users. However, employers can prohibit drinking alcohol during work.
Overall, “there are pretty overwhelming protections for employees,” cannabis industry attorney Jason Tarasek said alongside Vicente. “Our state treats THC the same as alcohol, and I think employers should consider it as well.”
State law allows employers to prohibit the possession of marijuana or even cannabis-derived products in the workplace, but enforcing this still requires writing it into company policy.
On the other end of the spectrum, imagine a corporate holiday party where low-dose THC edibles are served for those who don't drink the alcohol provided. Or you can use THC drinks or smoke together at a business meeting with a potential partner. Consider all hypotheses and document everything that is and is not allowed.
“Some policy decisions will depend on an employer's risk tolerance and culture,” Morgan wrote. “For example, is it okay for employees to use marijuana with customers?”
It may be helpful to consult with an employment attorney to draft or refine a cannabis policy to fit state law and workplace needs.
Restaurants and bars that sell food or drinks containing cannabis-derived THC, or businesses that allow on-site consumption, should consult their insurance agent.
“When Minnesota's low-dose THC market opened, insurance companies had no idea it was happening,” Moss said. “They're catching up now. People can now get riders and coverage.”