More often than you would think, we get calls from members wondering what they can do about someone who they think is impaired at work. When that happens, we immediately go into crisis control mode because, well, impairment at work is never acceptable.
In this article, we are going to discuss impairment and odors from the perspective of marijuana legalization. From job candidates showing up to interviews smelling like a skunk to employees showing up to their shift distracted with bloodshot eyes, knowing how to handle an employee’s potential marijuana use has only gotten more complicated.
Currently, marijuana legalization is in limbo between State versus Federal Government. While many states have moved to legalize or decriminalize its use, marijuana is still an illegal Schedule I drug under federal law. Nonetheless, 36 states have legalized medical marijuana use, and recreational marijuana use is legal in 17 of those states. The distinction between medical use and recreational use clouds the issue even more for managers and employees.
To further complicate matters, some states put specific job protections in the language of their marijuana legalization laws. This means that employers should think twice before using off-duty, suspected or known use of marijuana or any legal medically prescribed substance as the sole reason for taking adverse action against an employee or a job candidate.
So, what can you do? We at CEDR cut through the “fog” and help you navigate what to do if you suspect an employee is, as our Aunt Sharon would say, “high on the pot.”
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An Employee Who Uses Marijuana
As we mentioned, many of the states where medical or recreational marijuana use is legal have created protections for workers who legally use these products when they are off duty. These protections typically say that an employer cannot take any adverse action against an employee or applicant because they are a registered medical marijuana cardholder or they use cannabis products. In other words, simply knowing that an employee uses cannabis products cannot be the basis for disciplinary action or any employment decision.
Some states go a step further to say that employers cannot take any adverse action against an applicant or employee solely due to the presence of marijuana on a drug test. In effect, this means that in addition to a positive drug test, you would need to show that the employee was in possession of cannabis at the workplace or impaired on the job (see below) to discipline them.
The reasoning behind this type of protection is that there is no reliable medical test that indicates whether a person is under the influence of marijuana at a particular moment. While blood-alcohol and controlled substance testing can determine whether alcohol is present in the employee’s system when the test takes place, current marijuana testing can only determine that a person has used marijuana in the last couple of weeks and not much more. So, if you rely solely on a positive marijuana drug test for disciplinary action, you could be punishing an employee for legal off-duty conduct.
An Employee Who Smells Like Marijuana
While you can’t necessarily take action against someone simply because you know they use marijuana outside of work hours, you can ensure that this off-the-clock activity doesn’t impact your office.
We’ve previously written guidance to help employers with workers who smelled strongly of cigarette smoke. In that article, we pointed out that employers don’t have much control over legal, off-duty activities that take place away from their property. However, foul odors, be they cigarettes, poor hygiene, pet odors or even perfumes and cologne, have a direct effect on your workplace and are not legally protected. This includes the smell of marijuana.
In the case of marijuana, don’t say, “I don’t want to work with a pothead.” Instead, focus on the smell itself, “I need you to not smell like marijuana, or any strong odors when you come to work.”
So, in the case of a prospect who shows up to an interview with a strong weed smell, this is a safe bet:
“I am not sure if you are aware, but you have a strong odor about you. If I noticed it, my employees and patients will too, so this isn’t going to work. We’ve decided to move on to the next candidate, but thank you for coming in.”
You can also give them a short but professional interview. Then, tell them you are still interviewing so will get back to them. Make a note alongside their job application about the strong smell or signs of impairment, and send them an email informing them that they were not selected for the position. Remember that smelling like weed does not mean they are currently impaired or have recently taken a dose.
If you want to go further than just addressing the smell, you need to use the same methods we teach everyone in regard to any other type of impairment at work, such as alcohol. Make an objective assessment of the candidate or employee’s state of impairment and document your observations.
Actual Impairment is Never Okay
Whether it’s due to a prescribed or recreational substance, do not allow impairment at work to go unaddressed. Impairment is definitely a situation that warrants disciplinary action, possibly even termination. That’s why the manager’s notes and documentation are crucial. If you suspect impairment, you need to document what you are seeing. Stick to the facts, and stay away from judgments or conclusions. Focus on what you can see, hear and smell and detail the impact those things have on your practice and their ability to do their job.
Keep in mind that current drug testing capabilities can’t necessarily confirm someone is impaired by cannabis use at the present moment. Also, your state may give your employee certain legal protections around marijuana use — particularly if it’s been prescribed to them for a health concern.
Some objective symptoms of impairment are red eyes, slowed reaction time, impaired motor coordination, slurred speech, incoherence, difficulty concentrating, memory problems or trouble staying on topic or following directions.
Once you’ve documented what you are observing, meet with the employee and tell them that you have concerns. This is their opportunity to tell you what’s going on and your opportunity to tell them that you are seeing indicators that they are not able to do their job at the moment.
Here’s an example of what a manager might say:
“You’re rambling, your eyes are bloodshot, you’re moving really slow and you’re having trouble staying on task. This is not like you. Not only am I concerned for you, today, but I’m also concerned for the patients. Is there anything going on that I should be aware of?”
Notice that the employer focused on what they could see, hear and the impact on the employee’s ability to perform work safely. The employer laid out their job-related concerns through observation (red eyes, slow movements and inability to stay on task). In addition to sticking to the facts, it is very important that you take time to document, detail and timestamp disciplinary conversations about impairment as soon as possible.
If they admit to impairment, thank them for their honesty and immediately send them home. Of course, make sure that they have a safe way to get home without driving themselves. If they don’t admit to anything, know that you can still remove them from the workplace during the suspected impairment.
“I have concerns about your ability to work right now, and, unfortunately, I have reason to believe that you could be under the influence of something. This puts your ability to do your job and the safety of yourself and those around you at risk. I need you to clock out and make arrangements to get yourself safely home.”
The alternative to sending them home is sending them to get drug tested. Before doing this, you’ll want to know what the rules around drug testing are in your state. Generally speaking, it is permissible to have someone drug tested when you have reasonable suspicion of impairment.
While a drug test can’t necessarily prove they were impaired by marijuana at that point in time, having documentation of what you observed in the office along with a positive drug test can make it all the easier to take disciplinary action including termination. Again, you need to know the drug testing and marijuana rules in your state. Call CEDR first.
Impairment from Prescription Medication
It is possible that they tell you what you’re seeing is due to a prescription medication other than marijuana. Even if they’re taking a prescription issued by a healthcare provider, they still cannot work while impaired. You can still send them home, but this opens the door to a different type of follow-up involving giving them and their healthcare provider an opportunity to adjust their treatment.
It’s frustrating to have an employee come to work impaired, regardless of the circumstances, but remember that the goal is to eliminate impairment at work, not to punish someone for unknowingly having the wrong dose of medication.
Some employees do need to take prescription drugs, and it’s very possible their dosage is too strong without them being aware of it. Also, keep in mind that a person’s medical condition may worsen or the drug might all of a sudden stop working properly.
In addition, mental illness complications, certain medical conditions and specific neurological problems can sometimes resemble impairment to the untrained eye. In that case, you would still send them home or to their physician, but you would also give them a chance to correct the medically related issues. Nonetheless, impairment is impairment and must be addressed.
Given the tide of laws that protect the activity but not impairment, when addressing employees or potential hires about marijuana use, it’s best to keep your opinions about the morality of cannabis to yourself. Instead focus on how their impairment or smell directly impacts, or in the case of a potential hire, could impact your workplace.
While you can’t control whether your employees use marijuana products off the clock, you can and should address employees who smell like marijuana during work hours.
If you have a reasonable basis to suspect an employee is under the influence of cannabis or any other substance while working, you should address this immediately.
In states where marijuana use is legalized, keep in mind that there may be employee protections that prevent you from firing, not hiring or making any employment decision about a worker simply because they are a marijuana user or solely due to a positive drug test.