Episode 402: My Employee Smells Like Cannabis

Cannabis leaf on a navy blue background

There are a good amount of states out there that have now legalized cannabis for recreational purposes along with medical. As employers, we are getting faced more and more with employees coming into the office smelling like weed. Even if they do not seem impaired (if they do, that is an entirely different issue), there are steps you can take to ensure the smell is not present in your office. Listen to this week’s episode, where Paul, Nora, and Amanda sit down to talk about what to do when you’re faced with this situation. 

Transcript

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

 

Paul: Well, welcome to the podcast. You get to hear us making the sausage in the background. 

 

Amanda: [laughing]

 

Paul: I do want to say that I’m a little bit looking forward to this conversation that we’re going to be having about smelling like cannabis. I am joined by Nora. Nora, how are you?

 

Nora: I’m all right.

 

Paul: You’re all right? 

 

Nora: [laughing]

 

Paul: Just all right?

 

Nora: I’m great. 

 

Paul: Okay. 

 

Nora: Yeah. Fabulous.

 

Amanda: She did yard work this weekend.

 

Paul: Oh.

 

Nora: I did two and a half days of just-

 

Paul: Because it was so gorgeous here.

 

Nora: It was gorgeous, and the front, my front yard looked terrible. 

 

Paul: Oh.

 

Nora: We were embarrassed. Like, we were like those people in the neighborhood. 

 

[laughing]

 

Paul: Did you get the letter?

 

Nora: We didn’t get a letter because we-

 

Paul: Do you have cannabis growing in your front yard? 

 

Amanda: [laughing]

 

Paul: You could. Well, I don’t think you can grow it in your front yard…

 

Amanda: No, you can’t.

 

Paul: In Arizona. I also want to note to everybody who’s listening for the first time, we’re doing some video recording, and I spent so, you know, had to take a shower and do my hair – 

 

Amanda: [laughing]

 

Paul:  Which is pulled back in a ponytail.

 

Nora: You look great.

 

Paul: Aww, Nora, that’s very nice!

 

Nora: [laughing]

 

Paul:  Double, secret bonus points for Nora. You didn’t say anything like that, Amanda.

 

Nora: [laughing]

 

Amanda: I was going to say the ponytail vibe? I like it. 

 

Paul: You like it?

 

Amanda: It’s like, I picture you back when you did, like, your music stuff, and I picture your ponytail, like, longer and, like, coming to the side.

 

Paul: I had an earring in my left ear.

 

Amanda: Why can’t we recreate that? [laughing]

 

Paul: It was a half moon. Anyway…

 

Amanda: [laughing] It was a half moon? 

 

Paul: Yeah, I spent some time –

 

Amanda: So trendy!

 

Paul: Yeah, it’s silver. It was awesome. It was dangly. It wasn’t, you know, just if you were-

 

Nora: Oh, it was dangly. Wow. 

 

[laughing]

 

Paul: Yeah. Wow. But what I noticed was, you know, for the first time, I’m pulling my hair back or whatever. Took a shower, and I’m like, is that a pimple? And then I’m like, do I have any makeup in here? I don’t know why I would have makeup, but…

 

Amanda: We’ll go get some set makeup in case, you know, we ever have a breakout or something. 

 

Paul: Ooo, nice! Okay, good. All right. Now that we’ve gotten the important stuff out of the way –

 

Amanda: Very.

 

Paul: We’re going to talk about employees coming in and smelling like cannabis. Now, we’ve done an episode on just smells in general.

 

Amanda: Yeah. Hygiene.

 

Paul: And it’s kind of, it’s down that same vein. But here’s the thing that I want to point out, Nora. People who come in smelling like cannabis, I think there’s a high likelihood that they might be high, you know?

 

Nora: You think a high likelihood?

 

Paul: There’s a high likelihood that they’re high.

 

Amanda: Really? You think so?

 

Paul: I, I… that’s what I think. 

 

Amanda: Hmm. 

 

Paul: And if they’re impaired, they can’t be at work. And here’s the thing, someone who is prescribed a medication and they’re taking it, who is impaired…I don’t know of any other medication where they actually smell like the medication. Right?

 

Nora: Right.

 

Paul: Like, if you’ve taken too many painkillers or the doctor’s changed your, you know, your heart medicine or changed something –

 

Amanda: Yeah.

 

Paul: And all of a sudden, something’s going wrong with you, and you seem to be impaired, you know, these objective things that you can observe, slurred speech or they just, you know, they don’t seem normal. And when I say objective, you kind of need to define what normal looks like.

 

Nora: Right. And, you know, I think you could be right. I think the problem is most of the members who are calling in with this question are saying that their employees are acting normally.

 

Paul: Uh huh.

 

Amanda: But they just smell like it.

 

Paul: They just smell like it.

 

Amanda: So, like, they could be living at a house with, like, someone that smokes it 24/7, but they don’t, you know, but they come in and have this odor.

 

Nora: Or they could smoke and not realize that, you know, their clothing… like they could have smoked, you know, I don’t know, the night before. Who knows? And don’t realize their clothing smells like smoke. It’s also possible that they are high, but they’re just acting normally because there are people who can smoke and act normally. 

 

Amanda: Some people can do that. [laughing] Yeah.

 

Paul: Yeah, yeah.

 

Nora: So I think that’s kind of where it’s particularly tricky. And, and it also is tricky because some states actually have some protections for employees who have a registered, you know, medical maijuana, like card holder. 

 

Paul: For a medical reason. Yeah.

 

Nora: Some that, you know, it’s really for anybody, you know, you can’t discriminate against somebody for off duty, you know, legal conduct like smoking marijuana. So I think that’s also kind of where it gets a little tricky.

 

Paul: I don’t disagree. And I know that, you know, you’ve given some good examples of why maybe you know, they’re not impaired at work. They just smell like it. And I don’t disagree with that. 

 

Amanda: Yeah. 

 

Paul: So I believe we have to help everybody who’s listening kind of go down that objective versus subjective conversation about, ‘So just because they smell like it doesn’t mean that they’re impaired, so now I need you to tell me what about them appears to be impaired.’

 

Amanda: Yeah.

 

Paul: Now, that negates something else, though. And our other podcast we basically said, look, if you don’t, if you smell like anything other than almost nothing in a medical setting or really in any kind of business setting, then it’s probably not okay. So if you’re heavily perfumed, if you smell like the horses that you fed that morning. 

 

Amanda: Mm hmm. 

 

Paul: Those are the two ends of that spectrum that I’m going to use as an example. So we kind of want people to be neutral in smell. I do. I don’t want to be, if I’m laying in a chair or a hygienist is working on me or I’m at my doctor’s, I don’t want to be overwhelmed by any kind of smell. And so as employers, we do get to regulate that.

 

Nora: Right.

 

Amanda: So you can address the smell. Not necessarily accusing them, “You’re high at work!” It’s “Hey, there’s a smell present and we need to address that.”

 

Paul: And I also want to be clear, if you’re smoking cigarettes –

 

Amanda: It’s the same thing.

 

Paul: Technically you’re impaired. It alters who you are. 

 

Amanda: Mm hmm. 

 

Paul: I mean, you can’t just stop smoking cigarettes and just stop. I mean, it’s not exactly the same thing, but it is having an impact on them physically.

 

Nora: Hmm. I had never really thought about it that way, but when it comes to cannabis, I think you can kind of go down two paths: one being you smell like cannabis, but you’re acting normally. 

 

Amanda: Mm hmm. 

 

Nora: And one being you smell like cannabis, and you’re not acting normally. 

 

Amanda: Yeah. 

 

Nora: And I think the path that you go down is very different based off of those you know, two factors. And what you don’t want to do or say, “You smell like cannabis,” so now I’m going to come up with reasons why I think you’re not acting normally, even though you are. 

 

Paul: Right.

 

Amanda: Yeah.

 

Nora: So don’t do that. [laughing]

 

Paul: But I’m going to play devil’s advocate. This is a critical issue because if someone is not, if someone’s impaired at your practice and you have some suspicion that they are impaired, you have to act. You can’t let someone who you suspect may be impaired continue to go.

 

Amanda: Working.

 

Paul: And you’d be surprised. Nora, I mean, you won’t be because, you know, you manage the solution center and you’re in charge of compliance here. We get calls where it’s like, “I think this person’s impaired, what should I do?” And we’re like, “Wait, you think they’re impaired? Well, hang up with us and go get them off the floor.”

 

Amanda: Mm hmm.

 

Paul:  “And now and then give us a call and let us talk about what your next steps are.”

 

Nora: Right.

 

Paul: So I just want to point that out. You know, if you think they’re impaired, you need to observe what that is. Slurred speech, they’re not acting as quickly.

 

Amanda: Super red eyes.

 

Paul: Yeah, I guess you could look at red eyes. I mean, you know, but I come in with red eyes sometimes and I’m not impaired.

 

Amanda: Yeah, I guess that’s true. Good point.

 

Paul: And so –

 

Nora: It would just have to be those objective factors, why you’re thinking that they’re acting differently than they normally act. 

 

Paul: Right. 

 

Nora: And, you know, they could be really talkative. They could be really tired. They could be, you know, not observant or aware of really what’s going on. 

 

Paul: Slow.

 

Nora: Slow. Yeah. Really anything that could potentially put you know, a patient in jeopardy or the employee, you know, themselves in jeopardy.

 

Paul: Or affect their ability to do their job.

 

Nora: Right? Yeah.

 

Paul: Like they’re supposed to. The world has changed a little bit around this because of all these laws that have been passed, making it legal, both medically and recreational. You know, like, before I close this out, if someone comes in smelling like alcohol, we almost automatically assume that they’re impaired. But that may not be the case. They may have been drinking heavily and not brushed their teeth and come in the next day and they’ve got that smell of alcohol around them. In my mind, in my pragmatic mind, I’m still not so sure that they’re not impaired or that there isn’t a problem there. But in that case, I’m just going to lean into, geez, you smell bad and –

 

Amanda: Yeah it’s the whole hygiene thing.

 

Paul: I need to send you home. 

 

Amanda: Yeah. 

 

Paul: Someone who’s been smoking cigarettes might come in, went outside on a break, didn’t do a good enough job of making it so the patients don’t know. And I say to them, “You got to do something.” And they go change the… 

 

Amanda: Yeah.

 

Paul: You know, the clothes they have on or whatever and wash their face and wash their hands and brush their teeth and they’re fine. I don’t have to send them home. 

 

Amanda: Mm hmm.

 

Paul: Someone comes in smelling like marijuana now, I think in these many, many states who have legalized it for recreational, especially medical, you have to kind of look at both sides of the issue. There’s the smell and there’s the impairment.

 

Amanda: Mm hmm.

 

Paul: Right?

 

Amanda: Yeah. The blog we wrote focuses on smell without impairment. 

 

Paul: Right. 

 

Amanda: How do you work through that?

 

Paul: How do you deal with it?

 

Nora: Well, I think, you know, impairment, is its own separate blog or – 

 

Amanda: Its own entire thing. 

 

Nora: Or its own, you know – 

 

Paul: We have a bunch of those.

 

Nora: Yeah, podcast. Yeah. I think the smell issue, and that’s the more common issue that we’re getting, is they smell like marijuana. They’re acting normally. And it’s different from alcohol where, you know, with alcohol, it’s your literal, physical body that’s smelling and like oozing the alcohol. Whereas with marijuana, it could just be your clothing because of the smoke.

 

Amanda: Your hair or something.

 

Nora: Or your hair, yeah.

 

Paul: It could be something that was in your purse. 

 

Amanda: Yeah. 

 

Paul: That has nothing to do with what you’re doing –

 

Nora: Right.

 

Paul: Right now. And they’re just not –

 

Amanda: Aware of it?

 

Paul: Aware of it.

 

Amanda: Right? Yeah.

 

Nora: So what I don’t want people to do is automatically say, “Okay, you’re impaired, you know, I’m firing you,” or “I’m sending you for a drug test,” because if they’re not acting impaired, you can’t send them for a drug test. 

 

Paul: Right.

 

Nora: Just because they smell like marijuana. So, you know, really what I would recommend is if they do smell like marijuana, they’re not acting impaired. You can send them home. 

 

Amanda: Yeah. 

 

Nora: Because that’s not professional. It’s not a good look for your company, for your practice. 

 

Amanda: You don’t want your patients smelling that.

 

Nora: Right. Exactly. You can send them home and you can give them corrective action. You know, you can give them a verbal warning. 

 

Paul: Over the smell.

 

Nora: Yeah. Over the smell.

 

Amanda: Just the smell.

 

Paul: Just simply over the smell. 

 

Nora: Mm hmm.

 

Paul: I would also say this, and Nora you could correct me, but I, in sitting down with the employee, I would ask them directly. I want a record that I looked you dead in the eye and said, “Look, you kind of, you smell like weed right now. Are you impaired? I want your answer.”

 

Nora: Right.

 

Paul: And I may write a corrective action and say “Once again, I need you to respond to this and assure me that you did not come into work impaired.” Because being able to show in hindsight, let’s just say something goes wrong or, you know, some lawsuit comes about and that person is somehow involved in it, on that day it has little to nothing to do with this, but they’re still involved in it. You want a record that you tried. 

 

Amanda: Yeah. Right.

 

Paul: That you asked that question directly.

 

Amanda: Well, and it’s kind of nice to give them a chance to like, speak about it. You say, “Are you impaired?” and then they’d be like, “Oh, my gosh, no, I don’t want you to think that. I’m sorry. My roommate smokes constantly. I’ll be more conscious about coming in without that smell. Thank you for bringing it to my attention.”

 

Paul: Right. “I stop by for my husband or for” – 

 

Amanda: Exactly. Yeah.

 

Paul: “My wife and I picked it up, and it’s in my bag and it smells and oh, my gosh, I didn’t realize it. I’m so sorry.” These are all things that you document so that, you know, you can reasonably address this kind of little bit of a tricky spot.

 

Nora: Right.

 

Amanda: Well otherwise, I think if like, if it were me personally and my employer approached me about it and didn’t give me a chance to answer, and I knew I wasn’t impaired or anything, I would feel kind of bad. I would feel like they were just assuming I was high at work and they, like, didn’t give me a chance to be like, “No, it’s not that,” you know what I mean? And I just, that would make me feel icky as an employee.

 

Nora: Right.

 

Paul: We get quite a few of these calls, though. 

 

Amanda & Nora: Mm hmm.

 

Paul: And I can also, I’ll just share this, and we can’t give any guidance on this. I was at a meeting giving education 2017, 2018? Something like that, just before we, you know, kind of had to shut down and couldn’t go out for a couple of years. And the biggest concern in this study group, because we do that, if you’ve got a big enough study group we’ll come and speak or someone from CEDR will come and do continuing education with you. The big concern was that parents were bringing children into pediatric practices smelling like marijuana, and they felt like the parents were impaired and now they’ve got a child in the chair and they’ve got what they think is an impaired parent. And the discussion was, “Look, if they smelled like alcohol and their speech was slurred and we thought they were impaired, there’s no way we would release that child to them.”

 

Amanda: Yeah. For sure.

 

Paul: And so it’s hard out there. 

 

Nora: Right.

 

Amanda: Yeah.

 

Paul:  We get it, everybody. This is kind of coming at you from different directions and just, you know, hopefully you got a little something from this.

 

Amanda: Yeah.

 

Paul:  You understand you got to take a step back, especially within the employment context and kind of follow maybe some of the guidance that we’ve given you here and what we’re including in the blog.

 

Nora: Right. I also think it’s important to clarify because you said, you know, they smell like marijuana because they have it in their bag. You can prohibit, I mean, you should prohibit your employees from having, you know, drugs on the premises or, you know, marijuana on the premises. So that’s another area where a corrective action could be [laughing]

 

Paul: Oh I’m gonna play devil’s advocate here. 

 

Nora: Okay.

 

Paul: Can you prevent them from bringing in their prescribed drugs, which may cause them impairment and having it in their purse? You can’t.

 

Nora: Right. But you can for prohibited substances. It’s still illegal under federal law.

 

Amanda: Exactly. Yeah.

 

Paul: True. True. Okay, so there’s a little twist for you. 

 

[laughing]

 

Paul: So we end with a twist.

 

Amanda: End with a twist. Always.

 

Paul: All right. So anything else before we go?

 

Nora: I guess just another reminder that there are actually protections in certain states for employees who smoke marijuana, whether recreationally or medically. Not in all states, but in some. So that’s another reason to just be cautious and not just immediately terminate or immediately send them in for drug testing, because sometimes in some states there are laws saying you can’t terminate an employee solely based off of a positive marijuana test.

 

Paul: Oh, that, too.

 

Nora: Yeah.

 

Paul: So you really haven’t accomplished anything is what you’re saying?

 

Nora: Right. Right.

 

Paul: So this is complicated. This is even more complicated.

 

Nora: Right.

 

Paul: But nobody gets to be at work impaired.

 

Amanda: Exactly.

 

Nora: Correct.

 

Paul: That’s kind of the final word on this, right?

 

Nora: And nobody gets to be at work smelling like marijuana.

 

Paul: Or smelling like anything that you don’t want them to be smelling like. 

 

Nora: Right.

 

Amanda: Yup.

 

Paul: So what the hell just happened in HR is you have an employee who came in smelling like marijuana, and it doesn’t appear that they are impaired. What should I do next? 

 

Amanda: Yup.

 

Nora: Yeah.

 

Paul: That’s what we just talked about.

 

Nora: Yeah.

 

Amanda: Yeah, exactly.

 

Paul: Nora, that was great. As always, Luke, we appreciate you producing the show and…

 

Amanda: Catch you on the flipside!

 

Nora: [laughing]

 

Amanda: [laughing]

 

Paul: And we’re gonna catch you on the flip side Amanda thinks.

 

Nora: On the flippy flip. [laughing]

 

Paul: On the flippy flip.

 

[laughing]

 

Paul: All right. Bye, everybody.

 

Nora: Bye.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, and you’d like us to discuss it on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

May 23, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.