Earlier this month, our friends Tim Scott with Fisher Phillips and Patrick Sanders with SmithAmundsen teamed up with Compli’s Legal Content Product Manager Kynzie Sims for a webinar about employment law trends. Among other topics, they spent quite a bit of time discussing workplace drug policy at a time when no one is certain what the future holds for the legal classification of one drug in particular: marijuana.
Legalization Does Not Give Employees a License to Use Marijuana in the Workplace
Right now, 26 states (as well as the District of Columbia) have laws that broadly legalize marijuana in some form. And with more states passing and debating laws, nationwide legalization efforts aren’t slowing down. How can automotive dealers keep up?
Tim pointed out that a common misconception among employees who work in states where marijuana has been legalized for recreational purposes is that “it’s legal for me to smoke marijuana, that that means that you can’t do anything to me at work.”
“That’s not the case,” he said.
Just a Reminder: We’re not your lawyer (of course, right?) Since we’re not, remember that this article’s for informational purposes and not intended to provide legal advice.
“Most states that have legal marijuana still allow you to drug test, there’s nothing prohibiting drug testing. And in most situations, and in most of those states, [you are allowed] to terminate. So what I would tell you, dealers, is that make sure you understand the rules and regulations that apply to your state, and keep in mind also that federal law still applies. In federal law, marijuana has not been decriminalized at any level, so, potentially, you don’t want to be in a situation where you’re encouraging that sort of usage.”
“This is an incredibly interesting area of law because there’s so much change,” said Kynzie. “We’re kind of right in the middle on policy here, where you have an incredible variance amongst states, and between states and the federal law with the Drug-Free Workplace Act.”
“It’s a very dynamic and a very growing problem,” added Patrick, who mentioned that in addition to the marijuana debate, more and more states are dealing with rising levels of abuse of prescription drugs. He told our audience to pay attention to recent guidance from the Occupational Safety and Health Administration on when organizations can test and can’t test. For instance, he said, “you can’t test after accidents on matters where you can’t calibrate the amount of impairment based upon the testing.”
OSHA and States Agree: Supervisors Need to Look Out for Safety Violations
Patrick told us that “the number one issue” in regards to drug policies is how organizations train their supervisors. He advised us to learn from the past, and keep in mind that OSHA considers any kind of impairment a risk to workplace safety:
“Remember that observations that somebody is glassy-eyed or incoherent, or that somebody is so sleepy that they can’t respond—those observations, [when] properly documented and properly done after training, are clearly admissible and become business records in trials involving wrongful discharge or safety-related matters … [E]ven in states where marijuana is legal, you still have the question of your policies being properly tuned so that we’re talking about impairment.”
“This is also incredibly important,” said Kynzie, “because if you’re observing behavior that’s indicative of somebody being under the influence of an intoxicating substance, it’s important that your supervisors can recognize that not only from a compliance standpoint with regards to Drug-Free Workplace Act, but also with regard to safety.” It’s more than a broken rule; employers have a responsibility to look out for their employees, aside from disciplinary action: “if they’re not safe enough to work on your premises, they’re probably not safe enough to drive home.”
Regardless of the states in which they do business, dealerships can follow the same basic recommendations: “continue to your eyes and ears open, and test. If you have a reasonable suspicion argument, you can still go ahead and do it.” In some states, workers’ compensation laws require organizations to automatically conduct mandatory drug testing in the aftermath of an accident or injury. And, despite prior guidance to the contrary, OSHA has listened to feedback and affirmed these laws.
Every Organization Has Its Own “Acceptable” Level of Risk
The dealers Tim represents “really, really vary on how aggressively they focus on these issues, including marijuana”:
“I have some dealers that will flat-out say, ‘If I test for marijuana, I won’t have a single technician working for me.’ And so, they make the business decision to not test, either for marijuana or not test in pre-employment situations. …
If you’re going to do that, I would look at the back end and make sure that you have a very good risk management program—meaning your insurance policy has very significant and high levels, and do not include exclusions for these types of things. Because, if you’re going be sort of flexible on the types of things you’re going to allow people to do off-duty, you have to understand that, at one point, somebody may get into a car crash, somebody may get injured, and there may be marijuana or … [a] prescription medication their system. And some plaintiff’s lawyer is going to be looking to you and to your insurance policy to pay for that.”
Kynzie added that it’s critical for dealerships to make “appropriate, informed business decisions, just like Tim was saying, to maintain the level of compliance and risk that you’re comfortable moving forward with.” It may mean forgoing pre-employment testing, as long as that decision is consistent with laws and regulations in the state and at the federal level. It could also mean making changes to your policy when appropriate—so long as the change is “communicated to your employees, and they need to acknowledge that communication, and that needs to be documented so that everybody is incredibly clear.”
While your dealership may decide not to conduct drug testing or training, depending on your state, keep in mind that lives are on the line. To help our audience understand the risk, Patrick shared a cautionary tale from his time as outside general counsel for auto dealers in St. Louis:
“[W]e had a dealer who didn’t believe in the training, but he did believe in drug testing and did exactly that. He’s out of business not because of this, but [there was a] guy [who] was impaired in the workplace, and he says, you know, “Get in one of the demos here and drive over to the drug testing place and get yourself tested.” Well, he never made that far.
Learn More in the On-Demand Webinar
Believe it or not, the marijuana discussion was only about a third of our jam-packed presentation about the latest trends in employment law. The webinar also covered a number of sexual harassment and Fair Labor Standards topics. With employment legal costs on the rise, every dealership, no matter its size, should make time to review this one.