A new reality is taking over. Medical marijuana is now legal in 33 states and the District of Columbia, and recreational marijuana is legal in 11 states and the District of Columbia. The marijuana wave is here to stay. For employers operating in any of these states, the chances are high that at least some of your workforce is partaking in this newly legalized extracurricular activity.
So now its 1:20 p.m. on a regular work day, and you suspect that one of your employees has come back from lunch in a marijuana daze. What can you do? Most of the medical and recreational marijuana laws that have been enacted around the country allow employers to take disciplinary action against an employee if the employer has a good faith belief that the employee is “impaired” or “under the influence” of marijuana during working hours. But how can an employer tell if an employee’s legal use of marijuana outside of work hours is causing him or her to be impaired during work hours?
Unfortunately, science has not yet solved this problem. The current blood, saliva, and urine tests can detect the presence and amount of Tetrahydrocannabinol or THC (the psycho-active chemical in marijuana) in a person’s system, but provide no conclusive proof of whether the detected THC caused the individual to be impaired at any given time. For this reason, it is risky business for employers to rely solely on a positive urine drug test in concluding that an employee is impaired at work and then take disciplinary action again that individual.
The employer in the recent case of Whitmire v. Wal-Mart Stores Inc.,2019 WL 479842 (D. Ariz. Feb. 7, 2019) found this out the hard way. In that case, Carol Whitmire, a Walmart employee, obtained an Arizona medical marijuana card in 2013. In 2016, she injured her wrist on the job and was required to take a post-accident urine drug test which came back positive for marijuana. Walmart concluded that “upon reasonable belief, [Whitmire’s] positive test result [alone] for marijuana indicated that she was impaired by marijuana during her shift that same day.” The company suspended her because of the positive drug test and eventually fired her.
Whitmire filed suit, alleging that she was wrongfully terminated and discriminated against in violation of different Arizona state laws. Walmart moved for summary judgment, but provided no expert testimony to support its argument that the positive urine drug test showed that Whitmire was impaired at work. Therefore, the issue before the court was whether the positive drug screen alone could support Walmart’s good faith belief that she was impaired at work. No, ruled the court. In fact, the court sua sponte granted summary judgment for Whitmire as to liability for her discrimination claim. The court found that impairment is a scientific matter that required Walmart to present expert testimony that the marijuana metabolites in the positive drug screen were sufficiently concentrated to cause Whitmire to be impaired at the time of the accident. Without this testimony, Walmart could not show that it had a good faith belief that she was impaired.
Employers, heed this warning: a positive drug-test alone may not be sufficient proof of impairment to allow for disciplinary action against an employee. The better approach is for employers to supplement the drug testing with an investigation into whether an employee exhibited any of the physical and behavioral signs associated with marijuana impairment. Help is at hand because the newly enacted Illinois Cannabis Regulation and Tax Act sets forth a list of specific signs and symptoms of marijuana impairment. The list includes: (1) changes in the employee’s speech, (2) irrational or unusual behaviors, (3) carelessness that results in an injury, (4) physical dexterity, (5) negligence or carelessness in operating safety equipment, (6) agility, (7) disregard of the employee’s own safety or the safety of others, (8) coordination, (9) an accident resulting in serious damage to equipment or property, (10) the employee’s demeanor, and (11) disruption of the production or manufacturing process.
In Vermont, where employers need probable cause of impairment before they can drug test employees, Vermont’s Office of the Attorney General has also issued guidance on what behavior may constitute impairment, including: (1) observing the employee stumbling, (2) observing the employee slurring their speech, (3) if the employee has odors of alcohol or other substances, (4) if the employer finds drug paraphernalia, or (5) observing the employee using drugs in the workplace. Importantly, the Vermont Attorney General advised employers that they would need a combination of these signs and symptoms to establish probable cause.
Many of the impairment signs and symptoms on Illinois and Vermont’s lists are very subjective in nature. For example, identifying changes in an employee’s agility or physical dexterity may not be easy, and an employee’s agility or dexterity may have changed for a number of reasons unrelated to marijuana use. For this reason, employers should try to document as objectively as possible the signs or symptoms that were observed; e.g., on this specific date and time, the employee returned from lunch smelling of smoke, these three people corroborated that he smelled of pot, his eyes were really bloodshot and droopy, and he was speaking a lot more slowly than usual.
In Illinois, recreational marijuana use becomes legal on January 1, 2020. Employers should not wait until then before deciding how they are going to deal with impairment in the workplace. Instead, implementing procedures ahead of time will go a long way in protecting the company from liability. The first order of business is to train, train, train. Using the above lists as starting points, employers need to train managers, supervisors and team leaders on how to spot the signs and symptoms of impairment. Next, employers need to devise policies and procedures for correctly documenting the findings or observations of impairment and train managers accordingly. This documentary evidence will be critical in proving that an employer had a good faith belief that the employee was impaired, especially if the company takes disciplinary action against that individual who then files a lawsuit. Indeed, Whitmire could have had a very different outcome if Carol Whitmire’s manager had actually observed impairment signs and documented those findings.
But in some states, documenting the observed impairment is not the end of the story. In jurisdictions like Illinois, for example, the employer must provide the employee with an opportunity to contest the basis for the determination that he or she was impaired by marijuana. As such, employers should review the applicable state marijuana laws to determine what rights an employee has to contest impairment determinations and then implement a process that allows the employee to exercise this right.
The science of impairment testing is lagging behind the rapid legalization of marijuana. Until it catches up, employers need to know the ins and outs of their state’s marijuana laws and put written procedures in place if they want to take action against employees whom they suspect are impaired at work.
Amy K. Bharj is a Senior Counsel in the Employment, Labor & Workforce Management practice, in the Chicago office of Epstein Becker Green. She advises clients on employment issues and internal policies, including cannabis law, terminations, separation agreements, employee handbooks, non-compete agreements, risk management, workforce reductions, litigation strategy, governmental investigations, and recent developments in employment law.
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