Jessica Ollenburg, CMC CPCM, Partner

January 1, 2020 brought about new marijuana legalizations and an urgent need to adapt, but the leadership playbook is easier than you think! As we reel in the impassioned arguments regarding non-criminalization of cannabis, overthinking workplace risks has become the status quo, and the critical argument becomes muddled accordingly. No employer should allow workplace impairment, and that remains solidly true. That said, the alleviation of such risks is not as complex as we are led to believe. Whether you are currently conducting business in a legalized weed location or not, this blueprint to safety applies to your workplace.

1. Drug & Alcohol Policy Requirements: a well-crafted policy address OTC and prescription substances. Most prescriptions list side effects such as “dizziness,” “drowsiness,” “loss of coordination” and/or some other workplace impairments. As for items readily available to consumers, whether intended for ingestion or not, similar cautions are warranted. These cautions are often emphasized by the need to present ID when purchasing everyday decongestant and flu meds. Every employer’s drug and alcohol policy should include a requirement for team members to advise a medical privacy officer in advance of work should they be subject to any substance likely to impair. THC must always be in this category. The legality of THC then becomes a variable but needn’t always change policy.

2. Train in Reasonable Suspicion, Medical Privacy and “Go – No Go” Decisions. Workplace leaders, privacy officers and all team members charged with safety responsibilities need thorough, careful and accurate training in reasonable suspicion detection, definitions, responses and custody of information. While some are intimidated by the ability to spot THC impairment, THC often produces its own readily identifiable physiological signs. And, whereas some THC users will attempt to conceal those signs, a good training program will address these cues as well. With any reasonable suspicion of impairment, immediate work disqualification and swift testing are required. Onsite tests may confirm reasonable suspicion with varying reliability according to documentation available upon purchase. In all cases, reasonable suspicion should mandate swift submission to legally and medically approved testing. Secondary testing through prescribed means of deeper analysis may be necessary. Returning to the workplace after testing becomes a commitment to fair, compliant and equitable company policy, a policy determined and clarified by a legal expert.

3. Is Cannabis Use Protected? Whether we’re discussing legality of use/possession, GINA, ADA, medical prescription, EAPs or forward-moving legislation of any shape, we know that psychoactive properties impair. On a regular basis at Ollenburg LLC and previously at HRS, we’ve repeatedly proven that compliant practices successfully improve safety metrics, minimize company risk, and best engage target talent. If cannabis use is protected by law, the workplace continues to have rights to disqualify impaired workers, supervise them more thoroughly or transfer them to safer job responsibilities/environments with less risk.

4. Workers’ Compensation (WC) Claims: Whether or not a claim is paid is typically not an employer decision, but rather a carrier and statutory decision. The employer decides upon policy, communication/enforcement, reporting policy breaches, and corrective action according to policy. Employers may participate in arguing against employee eligibility and should certainly do so where prudent. We recommend statements within company policies that properly identify the final decision authorities and strategically identify employee failures that can jeopardize their claims. Falsely assigning perception of decision-making responsibility to the employer typically backfires for the employer.

5. Liability Costs: Unless or until federal decriminalization of marijuana, costs of liability are to some extent proportionate to the reasonable care risk management steps against workplace standards. These premiums may be affected by risk assessment factors, such as the WC modifier. As long as insurance carriers can lawfully escalate premiums where extraordinary risk is perceived, we’d expect reasonable care to provide the employer some leverage in shopping carriers for best rates. Severity and frequency of claims are on the employer’s watch list, and these are cost factors as well. Compliance with OSHA and all safety standards can prove an effective cost minimization tool when addressed with fiscal prudence.

6. “Looking the Other Way:” It is absolutely true that some workplaces make decisions not to test for THC, as some believe they’d have too few employees left on the floor. Some employers choose to increase safety protocol and “buddy system” responsibilities. Others proclaim “zero tolerance.” We advocate crafting every policy and the action steps toward change with reasonable understanding of the target talent demographics and current workforce population. Not all policy makers believe that studies of hard-drug users beginning with marijuana reveal any reverse-correlation that marijuana users are likely to switch to hard drugs. It’s no secret that controversy and opposing viewpoints reside here.

Knowledgeable discussions of marijuana decriminalization are critical to our cultures and lawmaking. Allowance of impairment where safety is in jeopardy is another critical discussion altogether. We often see the two arguments intertwined, yet safeguarding the workplace is quite possible even where THC is legal.