Several states have passed laws legalizing marijuana for recreational use. The after-effects of those laws have left HR professionals scrambling for ways to deal with employees that engage with that particular drug.
Most states give employers the freedom to regulate marijuana usage in their place of business. Yet, some states have passed laws prohibiting companies from taking adverse action against employees for what they do off the clock.
“There is a law in the state of Illinois that is called the Workplace Privacy Act, which means you can’t discipline employees for what they do outside the workplace,” said attorney Shari Rhode in an interview with news station KFVS12 in Marion, Illinois.
Therein lies the problem for HR professionals and managers alike. They are unsure of how to handle employees who engage in the recreational or medicinal use of cannabis—mainly because it is not as easy to identify the users.
Glassy eyes, slurred speech, slow movement, and the inability to finish tasks are just some of the characteristics of people under the influence, but then again, those same attributes can be applied to individuals who stayed up all night helping to take care of a newborn.
Currently, THC testing methods do not measure impairment levels, and most supervisors are not equipped to identify a worker who is under the influence of cannabis. Couple that with the advent of ways to hide the effects and the smell, and it could be a recipe for disaster, especially for blue-collar workers.
According to Louis Song, CEO of Proven Recruiting, “By choosing to test, employers, especially in California, are excluding a significant percentage of the population, particularly in manufacturing jobs.” While Song and his teams across the country do not advise companies on their internal policy, he does notice tech companies tend to have looser policies on background and education requirements as well as on drug policy.
The tight labor market conditions may influence some employers to turn a blind eye to the issue, especially if there is no drop off in production. Louis also states, “You look at supply and demand. Consider the supply in fields like A.I., automation and machine learning. These are not fields that breed substantial volumes of employees. This should be a consideration when setting company policy.”
For other employers, though, testing for the drug in real-time presents another hurdle.
Many states and local governments maintain their own laws when regulating requirements for drug testing of both current and future employees. Employers must follow the state’s rules about providing notice and following procedures intended to prevent discrimination and inaccurate samples.
In some states, employers are not allowed to conduct routine or random drug testing of employees who are already working for the company unless it is expressly written in their policy.
So, in order to administer a test, the employer must have a valid reason to request it from the employee. However, if managers struggle to identify someone under the influence, then a random selection for a drug test could be hit or miss. In addition to that, traces of THC can stay in your system for up to two months, long after the impairing effects subside. That increases the difficulty in differentiating between those who are impaired, versus those who have the drug in their system.
So, do you fire an employee for smoking a joint three weeks ago on a Saturday night because they still have traces of the drug in their body? What if the employee is one of your most productive workers? What if he or she only does it on weekends and when they show up to work, they are all business? These are just some of the issues on the shoulders of management.
A Possible Solution
Hound Labs, a tech startup, recently invented a quicker testing method for THC. In the same vein as a breathalyzer, their technology would assist employers and police with identifying those who are currently impaired by marijuana. However, when testing the device, it was determined that it was still too early to come up with an objective numerical figure for “impaired” cannabis use. While the process continues to be refined, it appears that the device is headed in the right direction.
As more cities and states legalize marijuana, the invention could stand to correct the remedy the problem facing some HR departments, while replacing hair and urine testing in the same breath. The company aims to put the device — in rotation — this winter.