Company Drug Policies: The Line between Disciplinary Action and Discriminatory Action
With the legalisation of cannabis looming closer in many areas around the world, companies need to begin examining their policies on cannabis use at work. Of course, it’s most likely that companies will be allowed to legally uphold existing zero tolerance drug policies. Upon legalisation, companies will also be allowed to stipulate disciplinary measures to be taken in any case where an employee is impaired at work due to cannabis use.
Most companies expect legalisation to have a disruptive effect on their employee policies. Source
However, with legalisation, companies will need to tread more carefully with their drug policies, knowing where the border lies between disciplinary actions and discriminatory actions. Employees with medical marijuana permits will most likely be the most complicated, since companies will be required to accommodate them just like they would anyone with a medical condition, rather than deprive them of an employment opportunity due to their use of medical marijuana.
The Obligation to Accommodate Medical Marijuana Patients
Disabled employees with marijuana permits are entitled to any provisions instituted across all levels for disabled employees. Employers will be required to treat employees on marijuana prescription like they would any employee who has been prescribed a medication, even if the employee has an addiction disability.
However, according to prevailing human rights legislation that cover employees with disabilities, the following are the limits to which employers are obliged to accommodate employees with medical cannabis permits:
- Medical marijuana permits do not give employees the right to be impaired while working.
- Employers are not obliged to condone the use of medical cannabis at work even when it’s prescribed if the drug use can jeopardise the safety of the employee and others.
- Medical marijuana patients are not entitled to smoke marijuana in the workplace.
- Medical marijuana patients are also not entitled to be absent from work without permission or to turn up late for work.
Monitoring Intoxication in the Workplace
Testing for cannabis will be one of the trickiest aspects of enforcing company drug policies. Presently, there’s no equipment that can be used to check for the current state of intoxication in an employee, like a breathalyser is used to test for alcohol. Cannabis intoxication tests currently available do not determine the precise level of intoxication or the time when the employee became intoxicated; the presence of the drug may still reflect in such tests several day, weeks or months after consumption.
Existing cannabis tests can detect the presence of cannabis in the body, but do not determine the level of intoxication. Source
As such, companies relying on these tests may frequently run into “false positives”, where the influence of intoxication may no longer be immediate but the results are still positive for marijuana. Nonetheless, employers can learn to read some physical signs of immediate intoxication such as bloodshot eyes, dry lips, the smell of cannabis smoke, slurred speech paranoia, etc.
But there’s also another critical challenge that companies will face when monitoring intoxication in the work place; unlike with alcohol, the jury is still out on how cannabis use can impact employees’ ability to function in the workplace.
The Best Approach for Companies Crafting Drug Policies
As with the use of alcohol and other intoxicating substances, companies need to adopt marijuana policies specifically for the workplace, duly informing employees of the disciplinary measures that might apply if they’re caught working under the influence.
As for employees with medical marijuana permits, companies will be obliged to accommodate them like they would other disabled employees, including shifting them away from safety-sensitive positions, changing their work schedules and duties, and providing reasonable support. However, employers should inquire about the health status of disabled employees and their fitness for duty from the employees’ physicians or an independent medical practitioner.
All in all, although new drug policies will need to be crafted for after cannabis legalisation, they shouldn’t require a significant deviation from the norm. Companies can simply just retain their current substance abuse policies, (even if it’s one of zero tolerance for recreational use) and then extend disabled employee policies to accommodate employees with medical marijuana permits. While legalisation will bring about many changes, there are already other substances in common use (such as tobacco and alcohol) that are covered by company policy. Instead of being disruptive, marijuana legalisation will simply require a few adjustments for companies to be able to accommodate employees who choose to use cannabis products.