For employers in Australia, dealing with workers using marijuana is comparatively easier. After all, marijuana remains a prohibited substance in Australia. Possession, use, and distribution are punishable by law, and employers only need to reflect the same in their respective drug and alcohol policies. Depending on the severity of the drug offence, an employer is empowered to immediately terminate employees who test positive for marijuana.
American employers, however, have it harder, especially with more than 20 jurisdictions legalising the use of marijuana for medical purposes.
Employers have no clear guidance
For all the marijuana laws being passed left and right in the United States, employers have remained without guidance on how to deal with workers using marijuana pursuant to their respective drug and alcohol policies. These statutes have a lot of uncertainties, and managing them is proving to be quite tricky for many American employers, especially those who have already made an effort towards drug safety policy development. Further complicating the issue is that the use, distribution, and possession of marijuana for any reason remains prohibited by federal law.
A more flexible drug policy
In the middle of all this uncertainty, what is an employer to do? After all, even if it’s already legal in many parts of the US, marijuana remains a dangerous substance that could cause workplace accidents when a worker is under its influence. The answer lies in the word “impaired”.
For an American employer in this day and age of marijuana legalisation, a zero-tolerance policy might not be the best recourse, because there are just too many complications and questions, but not enough clear answers. A little flexibility in the drug and alcohol policy may be called for, wherein an employer will not in any way meddle with the medical marijuana use of a worker who is not in a safety-sensitive position, but will not tolerate reporting to work impaired or bringing marijuana on to the workplace.
Sure, this more flexible approach has its complications, such as having to determine which workers are exempt or how it affects their workers’ compensation premiums. However, putting a focus on impairment rather than regular use outside of work can help an employer potentially avoid litigation under the marijuana laws of any given state. When an employer allows medical marijuana use during off-work hours, the act would be in keeping with laws that accommodate employees who wish to treat their medical conditions using the substance. At the same time, bearing down hard on employees who show up for work high will serve an employer’s work health and safety concerns well.
One thing that employers must remember is that for all the marijuana statutes out there, there is no law that allows a worker to be high at work exists. This is what employers should make sure their workforce is aware of. Make it very clear in your policy that showing up high will never be tolerated, and make sure that copies of this policy is properly distributed among the employees.
It would also be great if supervisors and managers are provided the right training for identifying the signs and symptoms that tell an employee is impaired or under the influence, as well as taking the appropriate steps to deal with the situation.