Marijuana Legalization
How should employers respond?

The legalization of marijuana may appear to be a problem for employers, it is actually a benefit in disguise. Eliminating the basis for distinguishing between marijuana and alcohol presents employers with the opportunity to take a fresh look at the best methods for producing high safety, quality, and productivity.

Should employers change their drug testing policy in states where marijuana in now legal?

They aren’t legally required to do so. The fact that the police can no longer arrest someone for smoking marijuana doesn’t mean that an employer has to hire them.

But employers have traditionally chosen to treat marijuana differently than alcohol on the basis that marijuana is illegal. Where marijuana is legal, that rationale is gone.

The social status of marijuana has also changed. Not long ago, marijuana use was socially unacceptable. Today, at least 40 million Americans smoke marijuana. And the majority of those who don’t think it should be legal.

This wouldn’t matter if drug testing identified employees who came to work under the influence. But all forms of drug testing detect only the inactive metabolites that appear in a person’s body long after they use a drug. It tells an employer nothing about an employee’s current condition or ability to do their job. Most marijuana users are weekend smokers who come to work sober like their social drinking coworkers.

This confronts employers with a challenge. Some prospective employees are drug dependent, especially those that use hard drugs such as heroin, cocaine, and methamphetamine. If they abandon drug testing, employers risk hiring drug dependent employees who can hurt productivity and safety. If they continue to drug test, they spend money on a program whose basis no longer exists. They also write off nearly a third of eligible applicants. It’s difficult to find enough talented employees when you discard thirty percent of the workforce.

Fortunately, employers do not have to choose between these two bad options. There are many other alternatives.

Finding a new course starts with remembering that the goal is safety and productivity. What employees do off-duty is not an employer concern unless it affects their job performance on duty.

Refocused Drug Testing

The easiest path for employers is refocusing their drug testing program on safety. This could include:

Testing for drugs whose use is still a red flag

While the vast majority of marijuana users are no different than social drinkers, users of opioids and amphetamines are at high risk of addiction. Addicts are much more likely to come to work under the influence or to have their lives deteriorate to the point where they are problem employees even when sober. Continuing to test for these drugs might still be a good idea.

For Cause Testing

Most employers conduct investigations of workplace accidents (or near misses). Such investigations could well include a drug test where the cause of the accident was an employee error.

Impairment Testing

Employers are concerned about drugs because they can lead to workplace impairment. Since impairment is the real issue, why not test for impairment? Systems that detect impairment testing are commercially available and a growing number of employers have used them with success. One such system, from Ocular Data Systems, detects impairment by observing its effect on the pupils.

Impairment testing not only focuses on what really matters but is non-intrusive. Many people don’t like being forced to urinate in a cup, especially when they are being watched. This can reduce employee motivation. Looking into a lens for a few seconds is not intrusive and unlikely to offend. Lack of intrusion also eliminates the legal challenges that urine testing sometimes raises. While it is relatively new to employment, impairment testing has been used for several years by law enforcement to detect impaired driving. The results have uniformly been accepted by courts.

Supervisor Training

First line supervisors generally know when one of their people is not performing their job well. But they don’t always do anything about it. This is frequently due to a lack of training. Few people are naturally comfortable with confrontation. Unless they have been trained to handle a confrontation over job performance, many first line supervisors will try to avoid it. By the time more senior managers become aware of the problem (if they ever do), it has gone on much longer and gotten worse.

First line supervisors can be trained to constructively confront an employee whose job performance has become a problem. They do not need to determine the cause of the problem and should not try to. All supervisors need to do is inform their employee that their work is no longer acceptable and that they will work with them to help them do better.

Providing this training not only improves safety but helps with overall productivity because problems of all types are dealt with quickly. Like any program, supervisor training requires resources and commitment by management. But these investments produce results that are more than worth the cost.

Employee Assistance Plans (EAPs)

Frequently, employees’ performance problems at work are caused by personal problems. Substance abuse, marital difficulties, mental illness, stress, fatigue and many other things can undermine a person’s ability to do their job well. Not everyone seeks help for these problems.

Making help available through the workplace often results in an employee becoming productive again. Numerous studies cited by the Society for Human Resource Management have found return on investment in EAPs to be as high as 300%.

Having an EAP is also key to successful first line supervision. First line supervisors often have friendly relationships with those who work for them. They will only overcome their reluctance to confront someone over a problem when they are confident that the conversation is confidential and that the company will try to help the employee. It is critical that management be committed to this approach. If supervisors think they are throwing a friend under the bus, first line supervisors will be very reluctant to do what is needed. But when they know that the person will get help, first line supervisors will tell them when their performance needs improvement. Coaching on how to conduct these difficult conversations is an important part of supervisor training.

Making Safety Top Priority

All employers know safety is important. But few make it their top priority. Any organization’s priorities are reflected in all aspects of its operation, especially its spending and employees’ incentives. When safety is a top priority, it receives top priority in allocation of corporate resources. When safety is a top priority, compensation and advancement at all levels of the company are tied to safety records.

Employers need not reinvent the wheel to take any of these steps. Excellent consultants are available to help employers implement any or all of them. National Workrights Institute will be glad to help employers find top consultants. There is no fee for this service.

128 Stone Cliff Road, Princeton, NJ 08540
Tel.609-683-0313
Lmaltby@workrights.org