Marijuana is the most commonly used drug in the United States, after alcohol. The Centers for Disease Control reported that 48.2 million people, or about 18% of Americans, used it at least once in 2019, the latest year for which figures are available. More and more state laws are allowing either medical or recreational use.
As the use of marijuana increases, employers are faced with several questions about establishing drug use policies that keep employees and customers safe. NATSO allied member Chartwell Law sponsored a Focus Group during NATSO Connect 2022 in Orlando, Florida, where they answered truckstop and travel center medical marijuana questions.
To share their expertise with Stop Watch readers, Stop Watch sat down with Robert Baker and Thomas Gallagher with Chartwell Law to learn more about crafting drug-related employment policies.
Can Truckstop and Travel Plaza Operators Implement A Zero-Tolerance Policy For Marijuana Use Among Employees, Be It for Medical Or Recreational Purposes?
Robert: For medical marijuana, it depends, in part, on the industry. There is a zero-tolerance policy for those with a commercial driver’s license, but when you start drilling down into other positions, you need to look at individual states and their policies for medical or recreational marijuana. In Pennsylvania, for example, it would be unwise to have a zero-tolerance policy if someone tests positive for medical marijuana. It is not necessarily a one-size-fits-all approach.
There have been cases when employers had blanket positive test termination requirements without thought on whether the employees used it for medical or recreational purposes. If you have a blanket policy that prohibits use for any reason, the courts have reversed dismissals, ordered reinstatement and required back pay. There is some real danger in that. We would caution people from having those policies without backing them up. People need to reconsider why they have the policy.
Can Employers Have Different Rules for Different Positions?
Robert: You could have different rules by job category. For example, if you have CDL drivers, all drivers would be subject to the same policy. You wouldn’t want to have different policies within each group.
Do You Have Any Suggestions for Best Practices on Marijuana Policies?
Robert: When we draft policies, we try to mirror the general alcohol or substance abuse policies as closely as possible. Within each state, there are guidelines as to what is considered to be under the influence of marijuana or other drugs. We generally try to look at the alcohol testing policies, and those typically would mirror each state’s definition of being under the influence. That gives the employer greater ability to test in certain situations. When you’re drafting policy, the rules and policy are ever-changing. You need to start somewhere, and then the policies need to be reviewed annually to make sure they're up to date.
What Do You Do If You Change Your Policy?
Robert: A best practice is, at a minimum, to distribute a revised policy to all staff. When a new policy is distributed to staff, we like to see that they review it and sign an acknowledgment. If they don’t sign it, the employee might say they didn’t receive it. A policy is best suited for an employee handbook, and, from the handbook, there is always an acknowledgment form. If it is reviewed and revised annually, you'd have that documentation.
What Options Do Operators Have for Determining If Someone Is Under The Influence Of Marijuana While At Work?
Robert: There is a breathalyzer in development that can measure marijuana influence similar to alcohol, but it isn’t widely used. When looking for someone under the influence of marijuana or other drugs, you can look for similar signs—slurred speech, bloodshot eyes, unsteady gate, look- ing through you and not at you. Determining when someone is under the influence is not an exact science.
Tom: How to determine if someone is under the influence is ever-evolving. Even a few years ago, people were smoking marijuana. Now there are so many odorless ways to consume it. Determining if an employee is acting differently than they typically do is an approach you have to take on a case-by-case basis.
Robert: If someone is at work and seems under the influence, the employer could take the individual to a testing center. However, urinalysis testing does not help determine the level of intoxication. It would be good to determine if someone had used marijuana in the last 30– 45 days. If a test is positive, you could engage in the process of determining if someone has a medical marijuana card.
Can You Ask If Someone Has A Medical Marijuana Card During the Hiring Process?
Robert: Questions about physical capabilities and medical restrictions are best asked post-offer but pre-hire. It is always a difficult question because if someone were to say, ‘Yes, I have a medical marijuana card,’ and then the offer is rescinded, that could appear discriminatory. You have to be very careful.
Is There Any General Advice You'd Give to Operators?
Robert: You want to make sure that whatever policy you have is legally compliant. We have employers that will contact us at the outset to help with the drafting. We have others who research on their own, pulling samples from SHRM, OSHA and EEOC, find policies and try to draft something that meets their needs. Then they send it to use to review. At a minimum, before any policy is implemented, they should have some involvement from counsel to make sure it is compliant.
See Advice for Truckstops: Best Practices for Addressing Marijuana in the Workplace for more from NATSO on this topic.
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