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Marijuana and the workplace: What does legalization mean for Pennsylvania, New Jersey employers?

By April 9, 2019 No Comments

(This post originally appeared on Philly.com)

I know that times have changed when my 80-year-old mother is legally smoking pot.

It’s true. My mother has a medical marijuana card and, as a resident of Pennsylvania, partakes of the substance to help ease certain of her ailments. That’s all well and good if you’re a senior citizen. But what if that same person is one of your employees?

That’s the issue many employers are trying to figure out and the challenge is expected to be more pressing. This week, New Jersey lawmakers postponed voting on a bill to make recreational marijuana use legal in the state. Pennsylvania lawmakers are currently considering a similar bill, and even legislators in Delaware — who had their efforts defeated last year — are regrouping for another try.

Currently, recreational marijuana is legal in 10 states and medical marijuana is legal in 33 states. Although the federal government still considers marijuana to be a controlled substance, it’s clear that there’s a growing trend toward legalizing it across the country.

So as the use of marijuana — medicinal or otherwise — grows, how does this affect your workplace policies?

For starters, it’s important to know that Pennsylvania, New Jersey and Delaware do not require their private employers to conduct drug test of its current or prospective employees. As an employer, and unless you’re a federal contractor or subject to specific industry mandates, the decision to do this is entirely yours.

I have some clients — particularly those with manufacturing operations or who deal with hazardous materials — that have very strict “no tolerance” drug policies for safety and insurance reasons. I have many others who have much looser policies or simply ignore drug testing altogether.

There are certainly valid reasons not to test for drugs if you don’t have to and the biggest is that finding good people in these days of low unemployment is challenging for both small and large companies. This is likely a significant factor behind the reason why such corporations as Apple, Facebook, Whole Foods and Starbucks have either (privately) relaxed their drug testing policies of late or eliminated them altogether, according to a report from Alternet, an independent news platform.

“You might wind up with results you don’t want,” Ian Meklinsky, a labor and employment lawyer at Fox Rothschild in Princeton, told the Asbury Park Press last year. “If a person comes to work and is a great employee, do you really care if they smoke pot on the weekend?”

Still, I believe that employers should have a safe and drug-free workplace.

Drug testing — even if only for specific employees based on their job description — is a good idea, as long as it’s done consistently and regularly communicated. Tests should be made of employees at least twice a year, and it’s certainly reasonable for an employer to be allowed to conduct discretionary random tests. Rules — a warning, suspension and possibly termination — should be documented in case of a violation.

Drug testing of job candidates after an offer has been made may also be a good practice. If you do the testing, though, I would recommend ignoring the presence of marijuana and instead focus on the more damaging stuff, such as cocaine, opiates, methamphetamine, amphetamines, PCP, benzodiazepine, barbiturates, methadone, tricyclic antidepressants, ecstasy, and oxycodone.

That’s because the testing of marijuana can be tricky. According to the popular health website Healthline, marijuana is “usually detectable in bodily fluids for 1 to 30 days” after last use and, as with other drugs, it may be “detectable in hair for several months.” Unless there are visible signs of marijuana use while on the job, it is very difficult to determine whether the presence of cannabis in a drug test is from recent use or from weeks before.

However, it’s important to be consistent when dealing with employees who may appear to be impaired.

“Employers should train managers in this regard,” advises Mike Trabold, director of compliance at Paychex Inc., a payroll provider and human resources consulting firm. “They should set a standard procedure for responding to suspected impairment, including documenting observable signs and removing bias.”

So what do you do if you become aware that an employee is using marijuana? If it’s for health reasons, you may be required to accommodate that employee under the Americans with Disability Act or to at least make certain accommodations, such as allowing an employee to work different hours.

“Generally, in Pennsylvania, employers are barred from discriminating against an employee certified to use medical marijuana,” Trabold says, “although they can prohibit employees from using the substance on work premises or coming to work under the influence, or prohibit use all together in certain dangerous or safety-sensitive jobs.”

The takeaway is that it’s important to review your policies and employee handbook and meet with both your insurance and legal professionals. Considering how fast our local laws are changing, the issue needs constant attention.

If you don’t believe me, just ask my mother.

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