Posted in News | by: Jessica Kraft

What to Do When an Employee Shows Up High—And Other Workplace Weed Situations

With one state after the next legalizing medical or recreational marijuana, a green rush is sweeping the nation. A significant number of employees report using marijuana—including those with safety-sensitive jobs.

As a business owner, marijuana usage might soon make its way into your business—and how you respond could impact your team and future growth.

Here are three ways employers are starting to deal with weed in the workplace, plus how real small business owners and experts would handle them.

1. When an employee shows up to work under the influence.

Know your local laws.

On the national level, marijuana is still a Schedule I drug. This means that while some states say it’s OK to use medicinal and recreational marijuana, the federal government doesn’t agree.

If you’re in Washington, Oregon, California, Nevada, Alaska, Colorado, Maine or Massachusetts, cannabis now has similar rules as alcohol for those over 21, and there are laws protecting medical usage.

In 26 other states, medical usage or having small amounts of marijuana (generally 1 ounce or less) is alright in the eyes of the law. The Marijuana Policy Project breaks down the new policies by state so you can see exactly what applies to you.

Susan Daniel, the founder of Employee Relations Consultants in Santa Rosa, California, says if your business receives federal funding—like a loan, contract, or subsidy—a zero-tolerance policy can be a safe way to comply with the federal Drug-Free Workplace Act. This means any amount of possession or usage from your employees would result in disciplinary action.

If you don’t take any federal money, Daniel advises that you comply with the state and municipal cannabis laws in your area.

Consider your employee’s line of work.

Even where it’s allowed, think about the type of work your employee does before you decide how cool you are with them using cannabis during or around work hours

Art Parra, owner of Warrior Landscaping in Colorado Springs, has three employees who operate heavy machinery while tending grounds. His policy prohibits marijuana use or possession during working hours and at a job site.

Outside of work however, Parra takes a live-and-let-live approach. “I don’t touch any and don’t necessarily agree with it, but as long as employees don’t come to work high, I don’t care. My main concern is the safety of my crew and my clients.”

It comes down to this: If an employee’s usage can put them or others in danger, make sure you take disciplinary action accordingly.

Draw a line.

Even when safety is not an issue, you should still expect professionalism from your team. Policies and sentiments may be changing, but not that much.

“None of the changes… excuses an employee who is impaired while working. Showing up for work intoxicated or falling asleep on the job cannot be ignored,” the Society for Human Resource Management (SHRM) states in an article. “After an incident—particularly one involving property damage—the employer can send the worker for a drug test if its policies authorize such action.”

2. When you suspect an employee of using.

Have a frank conversation.

Mary Allen Lindemann is the co-owner of Coffee By Design in Portland, Maine. She forgoes drug testing in her 65-person business, but if it seems like drug use is impacting an employee’s job performance, she doesn’t let it slide. If someone isn’t meeting the standard, management has a frank discussion with the employee about expectations.

“For any business owner, you’re going to find yourself in the weeds if you get into who’s doing which drugs for what reasons,” Lindemann says. Rather than getting into the details, she focuses on the results she wants to see and works with the employee to achieve them.

Make sure your policies are clearly communicated.

Can you answer the following questions?

  • What counts as “cannabis use?”
  • What would constitute “grounds for dismissal?”
  • What does a “marijuana-free workplace” mean to you?

Have a well-documented, carefully worded policy that reflects your company’s culture, values, and the nature of the work that you do. That way, if employees show signs of being high on the job, you know exactly where you stand and what predetermined actions to take.

Lindemann also advises small business owners to put energy into helping staff comply with laws through clear company communication and an employee assistance program. Coffee By Design’s Employee Assistance Program offers unlimited confidential phone counseling. “It’s about giving people opportunities to help themselves if there’s some other problem they don’t want to disclose to us,” Lindemann explains.

She also publishes their employee handbook online and sends company-wide updates whenever edits are made.

3. When you’re crafting your drug policy.

Determine how usage might affect your business.

How strict do you really want—and need—to be about cannabis? If safety is important, you probably won’t be as lenient as other companies.

The owner of a small commercial janitorial business with under 10 employees (who prefers to remain anonymous) uses medical cannabis herself and is empathetic to other users. However, because her business involves heavy machinery, this owner screens all her hires for usage.

“Liability is big, especially in the janitorial industry,” she says. This owner deals with employees caught using on a case-by-case basis.

Diane Buisman is an Oregon-based employment attorney and legal director of Vigilant, a firm devoted to employment laws, HR issues, and safety regulations. She offers more guidance:

“Would an employee who has used cannabis cause injury to themselves or others? Would it lead to lost production? If it’s essential for your employees to be drug- and alcohol-free, don’t relax that.”

Look at your business through an applicant’s eyes.

If safety isn’t as big of an issue, you might consider a different approach. Susan Daniel says some of her clients are moving away from zero tolerance policies that disqualify top candidates who test positive for cannabis.

“When you have a zero-tolerance policy, you are putting a flag in the ground and taking a really strong stand,” Adam Calli, founder of Arc Human Capital in Washington D.C. tells SHRM. “If that’s what you want to do, that’s OK. It can be a good thing. It sends a cultural message.”

But Calli warns, “You are taking away your flexibility. You might want to think it through.” If a top candidate uses cannabis medically or recreationally, you risk alienating them with a firm no-drug stance.

Do your homework—and ask for help where you need it.

Buisman advises that business owners educate themselves. “Knowing how different cannabis products affect the body allows you to make good decisions about what you’re OK with,” she says. But she sounds a note of caution: “A lot of resources are coming from people who stand to make a lot of money from selling marijuana. Be discriminating as you seek information.”

From there, an employment lawyer is the best person to help you draft a watertight drug policy. A lawyer with this expertise will know the latest developments of marijuana laws in their state, and they’ll be ready to guide you as you craft your policy.

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When it comes to weed, the laws keep changing. If you’re in a state where marijuana isn’t legal, don’t get too comfy; that may change soon. The key? Go with the flow (of all your state and local laws), and be clear with your team about what is—and isn’t—OK.

About Jessica Kraft

Jessica Kraft writes about pressing issues in health, education, and technology from San Francisco.