Q: My partner and I run a small company. One of our most talented workers, “Jake,” tested positive for cannabis on Thursday. His supervisor had sent him for a drug test saying he was acting funny and working slowly. Our zero-tolerance for drug use/impairment policy, which has been in our handbook for years, calls for immediate termination. After Alaska legalized recreational marijuana in 2014, we called one of our largest clients, a hospital, and their HR department said they’d decided they didn’t need to modify their policy, so we left ours alone.
We didn’t, however, intend to prohibit employees from marijuana use outside of work hours. When I called Jake to tell him he’d been fired, he said he didn’t smoke during working hours, but only on the weekend. We really like Jake and he has skills we need. How should we handle this?
A: Consider modifying or clarifying your policy and further investigate Jake’s situation.
Although zero-tolerance policies have the benefit of clarity, they tie management’s hands and bring with them significant downsides when employees test positive for cannabis. Not only do increasing numbers of good employees occasionally use cannabis, but employees may test positive and not be impaired or a problem during the work day. While the effects of THC, the main chemical in marijuana, can wear off within a few hours of ingesting it, the chemical traces can remain in the body for weeks. A non-zero tolerance policy leaves management decision-making freedom by using phrasing such as, “may receive discipline up to and including termination.”
You also enter a decision-making gray zone if you terminate an employee who uses marijuana for medical reasons. Although the Americans with Disabilities Act exempts from its scope the illegal use of drugs and the federal Controlled Substances Act currently lists marijuana as a banned substance, Alaska Statute 17.37.10 allows patients advised by physicians in writing that they “might benefit from the medical use of marijuana” to legally use marijuana. Courts in Arizona, Connecticut, Delaware and New Jersey have ruled in favor of employees who had medical exemptions but were fired for positive drug tests.
Some employers, however, fully intend that their drug policy apply to those who use marijuana prior as well as at work. Employees who hold safety-sensitive jobs, such as those who work as airline pilots, must be screened for drug and alcohol use, as substances remaining in their system could endanger themselves or others. Impaired employees can be less productive and may make costly mistakes or have accidents, leading to personal injury or third-party claims and rising insurance costs. According to a recent study published in The Journal of the American Medical Association, individuals who test positive for marijuana have 55% more industrial accidents and 85% more injuries.
Once you decide on your policy, apply it to Jake’s situation. The answer may lie in what your supervisor saw Jake doing that led him to send Jake for a drug test, as Jake may have been impaired regardless of when he claims he ingested marijuana.
Whether you clarify or retain your policy as is, make it crystal clear and publicize it to all employees. Many employees believe that they can use marijuana without consequence as it’s legal in Alaska for recreational use. Also, if you allow an exemption for medical use, you can require that your employee applies for a registry identification card to prove eligibility for the exemption. If you decide to prohibit the use of marijuana whether recreationally or on the job, you also need to clarify the penalties for failing a drug test and apply them in a non-discriminatory way to all employees, even those with needed skills.