Nov 20, 2021, 6:30am EST | 383 Views
High on the Job: Why Now Is the Time to Examine Your Company Policy on Marijuana
Benjamin Smith
Forbes Staff Leadership
Employees are looking for flexibility from employers. Now more than ever before, hybrid workforces and consistently changing state regulations demand an intelligent policy regarding the use of marijuana.
n a piece written in 2015 for Time Magazine, Bruce Barcott explains that before Brandon Coats was fired after testing positive for marijuana, he knew already this outcome was very likely to happen. Brandon Coats at age 16, became a quadriplegic confined to a wheelchair resulting from injuries suffered in a car accident. In 2007, Dish Network hired Coats, who hails from Colorado, for full time work at the company. Coats quickly became known as an exemplary employee by all accounts. In 2009, Coats obtained a medical marijuana card from the State of Colorado and began using the federally banned substance at night to treat his stiffness and spasms. In 2010, following a change in the Dish Network policy on drug testing, Coats was selected for a random drug test. Naturally, the failed drug test result was not a surprise to Brandon Coats when informed of it, he had preemptively communicated to his boss that this outcome was inevitable. After the aforementioned failed drug test, Coats was fired from Dish Network. Subsequently, a lengthy legal battle ensued, culminating with Coats losing the suit against Dish Network.
While the Coats' case catapulted this issue into the mainstream public eye, additional examples of litigation, namely wrongful termination suits, have been consistently growing both in complexity and frequency. Another case to consider is the case between Noffsinger and SSC Niantic Operating Co LLC, summarized in an article by Geoffrey A. Mort of Geoffrey Mort of Kraus & Zuchlewski LLP, "In this case, the plaintiff, a prospective employee in the evaluation process, Noffsinger, used small amounts of Marinol, a synthetic form of cannabis [to treat post-traumatic stress disorder]". After SSC Niantic offered her the job, she was required to submit a drug test. Shortly after that, she tested positive, and
the job offer was rescinded, which prompted legal action. The courts later ruled in favor of the plaintiff.
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Arbitration and litigation represent one possible outcome of a poorly drafted marijuana policy and should signal the urgent need for your company to update your policy to protect your business. Tina Lytle, in an online for SHRM.org, compliance and human resource online magazine, cites Lauraine Bifulco, President and CEO of Vantaggio HR Ltd, "From a legal perspective, it's fascinating—from an HR perspective—could you do anything else to make my life more complicated?" Bifulco's statement is just another example of how CEOs, compliance experts, and leaders from companies are struggling to navigate the ever-changing landscape of the legalization of marijuana.
Risk aversion seems to be of particular concern by human resource professionals, as evidenced in an interview with Abigail Wentzel of a local nonprofit. Abigail states, "My number one concern is protecting the interests of our organization, as well as attracting top talent, which makes this a challenging subject, especially in the governmental space." The statement by Abigail sheds light on a key stipulation when creating a refreshed policy which is to know the rules specific to your industry. The industry you are in may very well dictate the type of policy needed to protect your company.
The question remains then, as we know the issue is complex, what is the right policy for your company, and what is the correct balance of a policy knowing that we have entered into what many are calling the "great resignation” a new reality exists now as employees are choosing new employers, and new industries and are looking for the most attractive situations. As with any difficult decision in the scope of human resources, a powerful tool at your disposal is to see what other companies are doing concerning the same issues.
The addition of recreational marijuana has ushered in a new wave of thinking that makes the job of a leader difficult. Employees demand more freedom every day from prospective employers. Meanwhile, employers are facing the choice of attracting talent, some of whom may be users of marijuana for recreational purposes, and thus consider freedom to use marijuana outside of work as a priority. Equally as important is the consideration of those who use marijuana for medical treatment, their needs for marijuana as a daily treatment to several ailments.
For example in the article by Tamara Lytle referenced earlier, a few companies have stated their positions. An example is Caesar's Entertainment. "We believed we were losing too many otherwise qualified candidates," explained Richard Broome, an executive for Caesars Entertainment. "We still screen for marijuana if we have reason to believe an employee is under the influence." The author references a spokesperson from the tech giant Apple who has taken a stance to discontinue screening for all employees and limit mandatory screening to those in specific roles. Equally important is that the policy for Apple is clear that employees are banned from using or being impaired on these substances at work. Examples such as these might make the policy choice clear and eliminate testing for those not needed to comply for safety reasons.
It should be noted, corporations that span many states need to be vigilant concerning the variance in laws between each state. In her article written for ej4, a video eLearning company, author Kathy Irish points out a staggering statistic that "more than half of American adults have tried marijuana at least once in their lives, and close to 35 million consider themselves regular users." The numbers are clear, and you almost certainly have employees in your organization who are regular users of marijuana. The analogy made by the author is that while an adult that is over the age of 21 has the legal right to purchase and consume alcohol, you as their employer are justified to expect, at work, that alcohol is not present. Workers drinking on the job or an employee coming to work under the influence of an alcoholic substance should not be allowed.
The authors note that marijuana is not without health risks, for instance, just the inhalation of smoke from marijuana is more harmful than in the same amount of tobacco smoke.
A look inside an academic study posted to the Journal of Occupational and Environmental Medicine offers insight into the counterargument of why a stricter policy may be the right choice. This study investigates marijuana use from the standpoint of medical outcomes and risks. The authors note that marijuana is not without health risks. For instance, just the inhalation of smoke from marijuana is more harmful than the same amount of tobacco smoke. The study mentions other negative impacts such as overeating, upset asthma, and increased panic attacks.
Furthermore, as an addictive substance, marijuana is at a 9% risk for lifetime addiction, whereas tobacco is at 32% and alcohol is 15%. The study also summarizes the results of studies geared toward cognitive outcomes. It found that many studies noted a high negative impact on learning and memory. The authors assert that there has not been a single agreeable fact across the scientific community due to the varying testing methods completed. The study then concludes that "It is reasonable for employers to ban the use of marijuana at any time by employees, contractors, and other workers." The study also ensures to point out the necessary responsibility of each organization to research the laws that govern their specific industry and location.
While far from a consensus, the medical community does point out an interesting point regarding health effects. As the rising cost of healthcare continues to grow, and as a leader of an organization, the reduction of healthcare costs should be taken into consideration when decisions are made that will impact the policy
As a leader, the National Safety Council has some insight for you when beginning to develop your internal policy. According to the NSC website, there are five key elements to keep in mind when drafting a policy:|
- An outlined definition of what is considered in your policy regarding an employee's responsibility of use and possession.
- A proper listing of steps describing the response to an arrest or conviction of an employee.
- Testing parameters following an accident.
- Cessation programs in place to assist employees in need of treatment or support.
- Clear commitment from all leaders how the policy is managed and policed.
As evidenced throughout the research, the second piece of straightforward advice is to be very intentional in the review and creation of the policy to know and seek assistance from the council if needed to ensure every law and mandate is being followed.
Finally, the time is now to ensure you are protecting your company, as never before have regulations regarding marijuana been in such a fluctuating state. An excellent policy on marijuana will have to consider many factors, including legal restrictions, i.e., the legality of marijuana in each state. Employee well-being (see the example of Brandon Coats, who used marijuana for the betterment of his employer), attracting top talent—see Apple and Caesars as well as the legal case with Noffsinger—, the medical ramifications (minimal truly in comparison to similar classified substances), and finally the most critical key, education, education for employees on the risks and rewards of the use of marijuana and the appropriate time for consumption, as well as cessation or intervention resources, if needed. Last, the education of managers and leaders is critical so they to understand what to do in the event of an incident with an employee.
Benjamin Smith
Benjamin is Senior Writer on the Leadership Strategy team at Forbes, covering the challenges of Leadership in contemporary society. Other works can be seen in Rolling Stone Magazine, Time Magazine, and the Harley Davidson Weekly.