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Last month, we published Marijuana and the Workplace Part One: What is the Law of the Land? to explore the evolving legal landscape around marijuana use and how these laws impact workplace drug programs. The conclusion—it’s complicated, but not impossible to navigate.

The benefits of a drug-free workplace are appealing, but as the world evolves, employers need to make sure their policies adapt. There is no one answer that works for every business. Instead, employers will need to perform a risk assessment specific to their circumstances.

In Part One, we covered the laws that could impact your business. For Part Two, we take a look at some other elements to consider as you evaluate your policies.

How do neighboring state laws affect your employees?

Many companies located along a state border employ workers who live in the neighboring state. Reciprocity, however, does not apply to employment law, so the employer and employees must abide by the state laws governing the business location. 

For example, Wisconsin borders Minnesota, Illinois and Michigan. In Wisconsin, marijuana is illegal, but the other states legalized medical marijuana and have anti-discrimination provisions in place to protect legal users. A business location in Wisconsin, however, can’t accommodate employees with medical marijuana cards from neighboring states without violating Wisconsin law.

This has the potential to be very confusing for employees, especially if they think they are protected. You will want to clearly define and communicate your policy, so employees understand what is expected.

What kind of business do you operate? What are your safety concerns?

If you are in a service industry where your employees primarily sit behind desks in a climate-controlled office your everyday safety risk is probably pretty low—paper cuts, ergonomics issues, etc.

If you operate a facility where safety is a primary concern (warehouse, factory), you know that certain safety policies and procedures are required by law. Violation of these laws impacts not only workers’ compensation, but also potential fines from the Occupational Safety and Health Administration (OSHA). Your safety risk is likely high and, depending on your state workers’ comp laws, you might be required to conduct drug testing.

If you are a retailer or restaurant owner, you have more risk than an office environment, but arguably less risk than a factory. If there isn’t any requirement to test, you will want to weigh workplace safety against other pressing needs, such as recruitment and retention for your high-turnover jobs. 

Do you benefit from insurance incentives?

While some businesses may qualify for premium discounts on disability insurance, the most common insurance incentive comes from workers’ compensation related to safety concerns.  

Most state workers’ comp laws require post-incident drug and alcohol testing. If an employee is intoxicated or high at the time of an accident, it is presumed the employee’s impairment is the cause of the incident and related injuries.

In the state of Wisconsin, for example, workers’ comp may be decreased by 15 percent if an employee fails to use a safety device or to obey a reasonable safety rule. The employee must know the rule and it must be enforced. Similarly, if an injury occurs because of an employee’s intoxication by alcohol or illegal drugs, workers’ comp may be decreased by 15 percent.

Conversely, workers’ comp may be increased by 15 percent if injury is caused by an employer's violation of safety regulations or the failure to enforce employee compliance with safety standards.

Why might you want a workplace drug policy?

Beyond previously discussed benefits, a workplace drug policy can also help reduce the risk for liability related to safety violations or claims of employee discrimination.

In states with legal marijuana, law enforcement suggests thinking of marijuana like alcohol. Consumption is legal, but intoxication under certain circumstance is not. For example, it is unlawful to operate motor vehicles under the influence or engage in public intoxication.

As such, you don’t need to allow workers to be drunk or high at work. Even with the evolving legal landscape, employers may have a zero-tolerance drug policy as it relates to being under the influence or using substances in the workplace. And, unless state law prohibits the specific timing of drug tests, you may also conduct employee drug testing as part of your policy.

In fact, some states have provisions that are more favorable to employers who have drug policies in place. For example, the Illinois Cannabis Act states that it “does not create a cause of action against employers who test employees or applicants for drugs … pursuant to its policy. In response to positive results, such employers can withhold or withdraw an applicant’s offer, as well as discipline or terminate an employee.”

The most important part of that last paragraph is “pursuant to its policy.” A company with a clear written policy that is properly and consistently enforced has better leverage against accusations of discrimination and potential liability related to safety violations.

How are other employers adjusting their workplace drug programs?

Depending upon your industry, if you have a zero-tolerance policy and you pre-screen prospective employees, you could limit your candidate pool for open positions. In a Society for Human Resource Management (SHRM) article from August 2019, several business owners in hospitality and restaurants said they abandoned pre-screening for marijuana use because they couldn’t find enough employees who could pass the test. 

In other industries where safety is a concern but testing isn’t mandated, some employers have chosen to continue pre-employment marijuana screening for safety sensitive positions but eliminate marijuana from the panel for pre-employment testing for other positions.

Following evolving marijuana laws, and how the courts interpret them across the country, is a full-time job. So far, there isn’t any legal precedent that can be universally applied, so employers are on their own to understand the law and make practical policy decisions for themselves.

If choosing the best course of action for your organization feels daunting, reach out to a trusted risk advisor or attorney to help you ask the most relevant questions to determine your business needs. It is, without doubt, a complicated landscape, but you can navigate it safely with a little guidance.

Speaking of guidance, does all this talk of law and regulations have you wondering if you are missing other important requirements? Check out our visual guide to Common Workplace Compliance Requirements and make sure you have all your bases covered.

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A collection of articles from the McClone team with the helpful knowledge and insights to ensure your organization is well protected.