Marijuana Use vs. Fit for Duty

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Mike Rich
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Workplaces are feeling the effects of both medical and recreational marijuana legalization. These new laws are making it more difficult to discipline someone who tests positive for marijuana. Ambiguous language protects impaired drivers from prosecution and makes it hard for employers to prove impairment at work.

Unlike alcohol, a test that shows level of marijuana impairment is not available. Instead a person can test positive weeks after using marijuana. One alternative approach to simply banning marijuana use as a component of the company drug and alcohol policy is to cover impairment in the safety policy under fitness for duty.

Start off by requiring employees disclose when they start taking any drug that causes impairment when working a safety sensitive job. This can be marijuana or a cold medicine, and the employee doesn’t have to disclose the drug or medical condition.

Be sure to update all job descriptions to define all safety sensitive jobs in compliance, by just listing essential job functions. Have a policy that states when an employee works in a safety sensitive job they should be able to work in a constant state of alertness and in a safe manner, and disclose when they have taken an impairing effect prescription or other substance.

Then the employer has the right to make a fitness for duty determination or send the employee to an occupational doctor for a fitness for duty evaluation with a copy of the job description. If it comes back that they are impaired and didn’t tell you, then you can manage that under your safety policy, and not your drug policy.

Make sure that all employees have a copy of the written company policy and education on drug and alcohol abuse that includes where to get more information. Supervisors need recurrent training on the effects of drugs and alcohol and how to determine reasonable suspicion.

Everybody needs to know the company position on medical and recreational marijuana and other prescription drug use through a consistent and proactive policy that includes appropriate testing.

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