We certainly live in interesting times. I used to dismiss the people passing around petitions to legalize marijuana as hopeless dreamers — yet, here we are. Legal pot certainly looks as if it’s here to stay. More and more states are legalizing it for medicinal purposes and some for recreational use. Yours could be next.
This presents a conundrum for employers. Unfortunately, the more different state laws that are passed, the more confusion reigns, especially since it remains illegal according to federal law. It is classified as a Schedule 1 narcotic, right up there with heroin. When it comes to marijuana policy, there are more questions than answers.
Employers in the green industry are just as confused as anyone else. Because green industry workers use power tools and drive vehicles, all with a potential for causing property damage, injuries and death, these questions are critical.
Just how stoned is my employee?
You might be of the opinion, “What somebody does in their own time is their own business. I just don’t want them impaired on the job.” But how do you know?
“That’s the risk for our industry,” says Richard I. Lehr of Lehr Middlebrooks Vreeland & Thompson P.C., Birmingham, Alabama, legal counsel for the National Association of Landscape Contractors, Fairfax, Virginia. “Say somebody tests positive and is then involved in an accident involving a third party. To what degree is the employer at risk because he allowed the individual to continue to operate machinery or drive a vehicle?” Even if some tetrahydrocannibinol — THC, the mildly hallucinogenic substance that causes the high — remains in a person’s system the next day, or hours later, does that mean he’s impaired? No one really knows.
“We don’t have a way right now to scientifically test for impairment,” says Karen Pierce, managing director of Working Partners, Canal Winchester, Ohio, a firm that conducts drug-free workplace training for landscape and other companies all over the country.
“I can perform a court defensible drug test that will tell me, yes, there’s marijuana in this person’s system right now,” says Pierce. “But that doesn’t measure his level of impairment.”
“If someone shows up to work with alcohol in his system, that’s a sign of fairly recent consumption,” says Lehr. “There’s also an assessment that that person’s judgment and coordination is impaired. But there’s no test yet that’s that definitive for marijuana, where a positive result equals definite impairment.”
You can’t tell just by looking at someone if they’re high on the job or not. Some people hide it very well. John McCabe, owner of McCabe’s Landscape Construction and Nursery in Temecula, California, says he’s never observed anyone working for him who seemed visibly high on pot or anything else.
But he did work with a guy right after college who seemed to break all stoner stereotypes. “He was a foreman, and he would smoke pot on the way to jobs and would be totally functional. You couldn’t tell by his work. In fact, he probably worked better while he was stoned than when he wasn’t,” McCabe recalls.
Lehr says one or two states have laws that say an employer may not discriminate against anyone based on their use of marijuana. But generally, an employer has the right not to hire someone who uses or test positive for marijuana, even though it may be legal in that state.
“For instance, an employer has the right to say, ‘Nobody who uses alcohol will be employed here,” says Lehr. “I don’t know of any employer who has such a policy, but that would be permitted. And it’s the same for marijuana.”
Jessica Hawthorne, senior human re sources director and in-house counsel at the California Employers Association in Sacramento, California, says legalization of marijuana hasn’t affected an employer’s ability to control his workplace. An employer can say you can’t drink alcohol while at work, and marijuana is no different, even if medicinal.
“The bigger problem for an employer comes when he tests everyone in his company pre-employment, but then decides to ignore a certain person’s positive test result,” she says. “Then, something happens involving that person, and that positive test comes to light. They need to know what their exposure is should they choose to ignore a result.”
“I’ve had people fail the pre-employment test or not take it because they have a med card and they know they’ll come up hot,” says Frank Fontes, co-owner of Casa Verde Landscape Maintenance Corp., Alta Loma, California. “They decide they don’t want to be here. But I’ve never fired anybody for being under the influence of marijuana, and I’ve never not hired anybody for that reason either.”
He adds, “We do test when there is a suspicion. If you back into a mailbox, then you’re going to have to go pee in a cup.”
Do you have to let them use?
Ultimately, it’s your call if you’re going to accommodate someone’s use of medical or recreational marijuana. “There are a lot of interesting issues.” Pierce says. “For instance, if I let somebody go because they have a medical marijuana card, do I then have to pay their unemployment benefits? And what about workers’ compensation? In some states, that comes into play with regard to marijuana.”
“If someone has a medical condition that is considered a disability under the Americans with Disabilities Act, and the prescribed use of marijuana is permitted, then firing him because of that prescription is a problem,” says Lehr. “That said, an employer is not obligated to put that person at a job where he’d be at a high risk of an accident or injury.”
The prescription won’t protect the employer if he keeps that person on the job and there’s an accident or injury, and it’s determined that the use of marijuana was a contributing factor, adds Lehr.
If an employer decides an individual poses a safety risk in his current job, he’s not required to take that risk under the ADA. But the employer does have to look for a reasonable accommodation.
If the only other non-safety sensitive job open is bookkeeper, and the person isn’t qualified to be one, the employer is under no obligation to create a position just to accommodate him.
But laws vary, depending on what state you’re in. For instance, Pierce says Ohio’s law is very different from California’s. “Our medical marijuana law is quite employer friendly in that they do not have to accommodate it. It clearly states that employers can have a zero-tolerance policy and can fire or refuse to hire someone who tests positive for it.”
“Then, some other states say that you do have to accommodate medical use. Still others say, ‘Well, it depends.’ You can imagine the challenge this causes for contractors who work in multiple states.”
Employers don’t have to have a one-size-fits-all approach to drug testing, according to Lehr. An employer may decide to random-test only those personnel who are operating potentially dangerous equipment or vehicles.
In that case an employer may decide to do it on a random basis; or only test people applying for safety-sensitive jobs; or test only after an accident. Some do pre-employment testing and some don’t.
Hawthorne says employers need to decide if pre-hire testing is something they’re going to do or continue doing, and what they’re going to do with the information.
What should happen if someone tests positive? Lehr has had employers tell him that if an individual tests positive for marijuana, they don’t necessarily terminate him.
“Which is fine — many employers don’t. In a state where there are drug testing regulations, the employer has to have a referral-to-treatment program in place as part of the drug testing protocol.”
Carlos Zarraga, a project manager at Richard Cohen Landscape and Construction Inc., Lake Forest, California, says, “We send every applicant for a pre-employment drug test. In our manual, it says that we can do drug testing at any time, and I have fired people for being under the influence.”
Another factor that comes into play is the labor shortage. Hawthorne says she’s talked to lots of employers who used to do pre-employment drug testing and stopped because so many applicants failed.
She adds, “Employers need to decide if they’re going to do pre-employment or reasonable suspicion testing. Whether they test or don’t test, whatever the policy is, make sure it’s applied consistently without exceptions.” That includes management.
Some contractors place marijuana low on the list of drugs they’re worried about. They are much more concerned about opiates, meth, heroin and alcohol.
However, as Andre Zeppa, co-owner of Zeppa’s Landscaping Service Inc., Louisville, Kentucky, points out, anything that distracts someone from the task at hand is a problem. “In the workplace, everything is severe. Even phones can be a distraction. If you’re driving a 25,000-pound truck down the road and slam into a little tiny sedan, you’re going to do some damage.”
Ohio just legalized medical pot, but that hasn’t been a problem for Buck and Sons Landscape Service Inc. in Hilliard.
“Ohio has state-funded workers’ compensation insurance,” explains co-owner and vice president Mandy Buck Rhoades. “There’s a drug-free safety program that all public and private employers who use that system can participate in. Part of the new law says that the Department of Workers Compensation can mandate that marijuana is one of the drugs that are not permitted as part of that program.”
Besides, Buck and Sons has federal contracts, and the feds consider marijuana illegal, prescription or not. “But I’ve had people applying with us get upset because they think that they have the right to use pot and shouldn’t have to get drug tested.”
The Wild West
The mishmash of conflicting laws about marijuana will hopefully be sorted out someday, probably after a whole bunch of lawsuits. Face it, we’re living in a Wild West situation when it comes to this issue.
Pierce says, “The number one challenge for employers is the elephant in the room — the conflict between federal and state law.” Sometimes, it’s easy. For instance, if you employ people with commercial driver’s licenses, federal law prevails because the U.S. Department of Transportation has mandates.
Hawthorne says, “If you’re consistent and you follow your policy, that’s your best protection. When you decide to become part of the Wild West and pick and choose which laws you’re going to follow, that’s where you get into trouble.”
She advises, “If you choose not to do pre-employment testing because you don’t want to know, then don’t ever do it. If you do want to know, do it and follow your policy consistently. Pick a path, and then follow it.”
Whatever path you choose to follow, walk it carefully and get expert advice.
Tips for your business
As of this writing, marijuana is legal in 30 states. The District of Columbia, California, Colorado, Massachusetts, Nevada, Oregon, Vermont and Washington now permit adults over 21 to buy marijuana, no prescription * needed. A number of states have also decriminalized the possession of small amounts of marijuana.
Recreational pot became legal in California on Jan. 1. Frank Polizzi, public information officer for California’s Division of Occupational Safety and Health, says “Landscape contractors in California are required to prevent intoxicated employees from placing themselves or others at risk. This is pursuant to workplace safety regulations, regardless of the legal status of drugs or other intoxicants.”
Jennifer Grady is an employment and immigration attorney at The Grady Firm P.C., with offices in Southern California. She is also a partner attorney and member of the board of California Employers Association. (The opinions expressed are hers alone.) She advises updating your written drug and alcohol policies annually to comply with updates in the law and having them reviewed by a lawyer before they are distributed.
Rather than simply stating your drug and alcohol policy in a job application or employee handbook, Grady recommends having employees sign a standalone document that outlines the policies, expectations and circumstances under which they may be tested, along with potential consequences for policy violations. Always get an employee’s informed written consent before proceeding with drug or alcohol testing.
As an employer, you need to know exactly what the law in your state specifies and not make assumptions about what you think it says. For additional guidance, contact the National Association of Landscape Professionals, your state contractors’ association or your legal advisor.
* Since marijuana remains illegal under federal law, doctors can’t prescribe it. All they can do is write a recommendation.