As both laws and attitudes toward marijuana continue to change, the question for employers is likewise, “Then how does my organization’s HR and approaches to people management need to change?”. In this episode of Honest HR, host Amber Clayton is joined by Holland & Knight attorneys Dana Feinstein and Travis Nelson, who provide insights and guidance for employers navigating the complex issues surrounding marijuana in the workplace, with a focus on legal compliance, accommodation, and policy development.
As both laws and attitudes toward marijuana continue to change, the question for employers is likewise, “Then how does my organization’s HR and approaches to people management need to change?”. In this episode of Honest HR, host Amber Clayton is joined by Holland & Knight attorneys Dana Feinstein and Travis Nelson, who provide insights and guidance for employers navigating the complex issues surrounding marijuana in the workplace, with a focus on legal compliance, accommodation, and policy development.
Earn 1.00 SHRM PDC for listening to this podcast; all info provided in-episode.
Wendy Fong:
Welcome to Honest HR, the podcast for HR professionals, people managers, and team leads, intent on growing our companies for the better. We bring you honest forward-thinking conversations and relatable stories from the workplace that challenge the way it's always been done. Because after all, you have to push back to move forward. Honest HR is a podcast from SHRM, the Society for Human Resource Management. And by listening, you're helping create better workplaces and a better world. I'm Wendy Fong.
Amber Clayton:
I'm Amber Clayton.
Monique Akanbi:
And I'm Monique Akanbi.
Amber Clayton:
Now let's get honest.
Wendy Fong:
Now let's get honest.
Monique Akanbi:
Now let's get honest.
Amber Clayton:
Hello everyone and welcome back. I'm your host, Amber Clayton, senior director of SHRM'S Knowledge Center Operations. In our episode today, we're going to discuss the technical competency, HR expertise, employee and labor relations. Today, we're going to discuss the hot topic in the workplace right now, which is the use of marijuana by employees. This podcast is approved to provide one PDC towards SHRM-CP and SHRM-SCP recertification if you listen to the full episode. I'm pleased to be joined today by Travis Nelson, partner and member of the Cannabis Practice Group, and Dana Feinstein, associate at the Labor and Employment at Practice Group at Holland & Knight, welcome to the show.
Travis Nelson:
Thanks, Amber. Glad to be here.
Dana Feinstein:
So glad to be here today.
Amber Clayton:
Great, great. Our listeners, they don't know you, so if you could just provide us a little bit of information about your yourself.
Travis Nelson:
I'll start. I'm Travis Nelson, as Amber noted. I'm a partner and member of the financial services as well as cannabis practice groups here at Holland & Knight, resident in our Philadelphia and New York offices. Prior to joining Holland & Knight, I was an enforcement council with the Treasury Department in Washington, DC. And, I teach courses on regulatory law at two law schools in Philadelphia.
Amber Clayton:
Great, thank you.
Dana Feinstein:
So, like Travis, I'm also in our Philadelphia office of Holland & Knight. As you mentioned, I'm an associate in the Labor and Employment Practice Group. And, I focus primarily on employment law, discrimination, harassment, retaliation matters in litigation before government agencies, and advising counseling for employers.
Amber Clayton:
Great, thank you. So, you're going to have a lot to share about this topic.
Dana Feinstein:
I hope so.
Amber Clayton:
Yes. So we get this question all the time in the Knowledge Center, the ask an advisor service, about whether or not employers can take any action on employees who are either under the influence of marijuana or have been using marijuana inside and outside the organization. So, I'm going to start with some of the basics here and ask you, "What is the federal law regarding marijuana?"
Travis Nelson:
Thanks, Amber. I'll take that one. The federal law regarding marijuana is somewhat complex and involves a patchwork of regulations, and laws, and court opinions at the federal and state level. The policies from state to state are as diverse as the states themselves. When we start with the base, there's no question that under federal law, cannabis or marijuana is absolutely illegal. It's a controlled substance on the controlled substances list, which is issued by Congress and the Justice Department. However, over the years, particularly over the last 10 or so years, the federal law enforcement has mitigated, has softened their approach.
First, in 2013, then Deputy Attorney General Cole issued what was referred to as the Cole Memorandum, which outlined the Justice Department's policies on enforcement of federal cannabis laws. Under the Cole Memorandum, the Justice Department would not bring a law enforcement or investigatory action where the cannabis activities was, first, in compliance with state law, and second, didn't offend one of eight listed factors that were provided in the Cole Memorandum, such as, selling marijuana across state lines, the sale of marijuana being used as a cover for other illegal activities, use of a firearm or violence in the sale or distribution of marijuana, selling to children, selling on federal lands or federal buildings. That was the Justice Department's policy, and it was used to guide the U.S. attorneys in the '94 or so federal judicial districts across the country.
Then, in 2014, under the Obama administration, the Treasury Department, through a bureau called the Financial Crimes Enforcement Network, issued guidance for financial institutions, perhaps some of the most regulated companies in our country, financial institutions were often seen on the front line in terms of cannabis regulation and enforcement. Essentially, the Treasury Department of Guidance from 2014 said that financial institutions essentially are allowed to serve the cannabis industry. Next, we have what was called the Appropriations Rider. So, every year, when we hear on the news about Congress debating and negotiating the federal budget, while looped in that federal budget discussion was an Appropriations Rider, and that rider said that so long as state activities are being conducted in compliance with state compassionate use laws or medical marijuana laws, the Justice Department may not spend taxpayer dollars investigating or prosecuting.
Fast-forward to 2018, then Attorney General Jeff Sessions, in a very summary short and cur fashion, about a half a page memo that was issued rescinded the Cole Nemorandum, and said that's out. And now, there's no formal guidance. But the Treasury Department left the treasury guidance in. And, in a way, you have the same administration, you had the Trump administration, and very different approaches to cannabisality enforcement. Jeff Sessions, who was previously a senator from Alabama was very anti-marijuana, versus the treasury secretary, Steve Mnuchin, who was very much in favor of it. And, based upon the relative backgrounds, of the diversity of the Trump cabinet, Jeff Sessions, former senator from Alabama, and Steve Mnuchin, the man who produced Austin Powers. So, very different backgrounds.
Now, couple quick points before I shift it over back to you, Amber. In 2018, Congress passed a revolutionary statute called the 2018 Farm Bill. And the Farm Bill deregulated hemp. And hemp, under the Farm Bill, is essentially cannabis with all or almost all the THC, which is the ingredient in cannabis that gets you high. They moved it all out of hemp. And, they made that low THC, or ultra low low THC tantamount to agricultural commodity, like tobacco. And finally, in the area of CBD oils, that's a very hot topic, we often see them sold at your local drugstore, or convenience store, or Walmart. Last week I was in a hotel in New York and we had CBD packets in my hotel room, so very different.
Amber Clayton:
Oh, wow, interesting. I haven't been in that hotel yet. I haven't seen it in mine.
Travis Nelson:
It's quite lively. CBD oil, it's essentially an oil form of Advil. It's designed for muscle reluctance, for certain healing attributes. But, for our purposes, CBD oil that does not contain THC is tantamount to Advil for HR purposes.
Amber Clayton:
That is really interesting. And thank you for that timeline of events leading up to where we are today with respect to the federal laws and marijuana. It can be really confusing for employers, especially when they're multi-state employers. So, let's talk a little bit about the CBD oil for a minute, because I know that is, as you said, a hot topic. And, we have heard about people being arrested for having CBD oil, while they're traveling on a plane, things of that nature. So, just out of curiosity, with the CBD oil, is there anything in particular that employers should be looking at when it comes to CBD oil? Like if they found an employee in the workplace and they had CBD oil, should they approach them and ask them if it has THC in it? Or, what should an employer do in those types of situations?
Travis Nelson:
Well, that's a great point. And my colleague, Dana, may also have some thoughts on this. But as a general matter, if CPD oil that doesn't have THC is treated like Advil, then that's how the employer should treat it. Employers have the discretion to certainly have a lockbox or a health room, a nursing center, or choir room, where all medication is kept regardless of type. However, those types of situations, the administrative burden of enforcing that and policing for that may outweigh any factors.
Now, there may be some specialty type settings like a school, or a correctional institution, where having CBD, or Advil, or Tylenol, or Aleve, or anything on your person, or in your purse, or your briefcase may be prohibited and there may be good reasons for that. But as a general matter, if we have concrete, clear, and well disseminated policies on medical marijuana, adult use marijuana, and CBD and hemp products in the workplace, we alleviate and avoid a lot of those questions. Dana?
Dana Feinstein:
Sure. Yeah, Travis makes some great points. My thing is always about consistency with employment law. So, making sure that you're treating things consistently with the law and between the various employees. So, as Travis pointed out, CBD oil is legal under federal law. So, from a legal standpoint, there's no need to treat it the same way that you would treat marijuana or cannabis. But, it's important to remember that there may be reasons that are related to health concerns for CBD oil usage. So it is an Advil, but to the extent that an employee is using CBD oil in the workplace, an employer should consider whether that might trigger some knowledge that the employee has some health condition and whether they need an accommodation.
So, depending on the circumstances, it might be worth exploring that and seeing whether the employee needs an accommodation or has anything that they'd like to discuss. If it's not disrupting anything and it doesn't create any safety concerns based on the employee's job and there's no legal considerations to take into consideration, then I would say, you can just let them use it the way that you would let them use an Advil in the workplace.
Amber Clayton:
Got it. Thank you. So let's talk about the multi-state employers and all of the laws that they need to follow with respect to marijuana. We know some laws have legalized medical marijuana, some recreational, some both. So, the state laws, they override the federal law. Can you talk a little bit about how employers in multiple states can handle all of these different laws, or at least make sure that they're complying with them?
Travis Nelson:
Sure. That's a great question, Amber. On the issue of federal and state law. In our federal system, federal law trumps or supersedes state law with respect to certain issues. One of those issues is with cannabis and marijuana. So, states do not have the freedom, or ability, or discretion to override, or prevent, or interfere the exercise and enforcement of federal powers. So, that makes for an interesting situation where you have an employer that operates on a multi-state basis, whether it's two or three states or nationwide. And generally, they have two options. One, they could pick the lowest common denominator among the states. And when we talk about lowest common denominator in the employment field, and Dana may have some more insights into this, we look at the most employee favorable or employee protecting jurisdiction. In many cases, I've found that may be my home state of California, they tend to be very consumer friendly, employee friendly.
Amber Clayton:
No.
Travis Nelson:
Yes, that's exactly right. It's California. In law school, they used to say, "They never had a thought, they didn't codify." So, there's a lot of rules and regulations out there. So they can go for the lowest common denominator. Or, they can go on a state by state basis,. And there may be different pros and cons to different approaches.
Amber Clayton:
Dana, any thoughts on that?
Dana Feinstein:
Sure. Yeah. Well, just as Travis was saying, I think, an employer really needs to consider, A, how many states are they operating in. And, what is the difference in the laws between the states or they're operating. If they are in all the states or in large number of the states, it may make sense to have a one size fits all approach that is the least common denominator just for administrative ease. On the other hand, if they're operating in a lot of extremely restrictive states, they may not want to take those extremely employee friendly laws and apply them to all employees across the country, where they may have a lot more flexibility if they're operating in a state like Texas.
So, I think, it really is a fact specific determination, and it really comes down to the employer's tolerance for administrative burden and the concerns that they have as a result of their industry. So, a hospital system, or some health related organization, or something to do with safety may have more concerns and would prefer to have greater restrictions in place whenever they can, as opposed to an organization that doesn't have those same concerns may prefer less administrative burden. So, it really is a determination that each organization has to make for itself.
Amber Clayton:
So, just to simplify this for our audience, because I know there's a lot of legal terminology and ways to handle it depending on the state laws, aside from industry specific or job specific positions that may want to be considered, let's say, I have a couple of states. One of those states does allow people to have medical marijuana, recreational marijuana, CBD oil, but then the other state might only be medical marijuana. Are you saying that an employer could potentially go with the law that actually allows the medical recreational CBD and just apply that to also their two other locations? Is that what I'm hearing?
Dana Feinstein:
So, just to be clear, and I know that you said accepting certain industries, but the federal law does require testing for marijuana under certain circumstances. So, federal contractors, people who carry commercial driver's licenses, certain safety sensitive industries do require that testing. And so, if the industry has anything to do with the ones I just mentioned, or anything covered by federal law, they would need to comply with federal law and test. And, of course, if there's any state laws that govern and require testing, that of course, would come into effect as well. But otherwise, the employer can choose not to test for marijuana, even if they're permitted to do so under the law.
Amber Clayton:
Okay. And that actually brings me to my question about, can employers still conduct those pre-employment drug tests and can or should these tests include or exclude marijuana?
Dana Feinstein:
Sure. So, as we just talked about, certain industries are required to give marijuana tests as we discussed, federal contractors, people with commercial driver's licenses, situations where there's specific safety concerns that might be required to do testing under the Department of Transportation, Department of Defense, for Nuclear Regulatory Commission, the Federal Motor Carrier Safety Administration, things like that. Other than that, in terms of state laws... So, I guess we should break this down, there are states that permit recreational marijuana use. There are states that only permit medical marijuana use. And then, there are states that don't have laws permitting the use of marijuana. And Travis, feel free to jump in at any point. But, in general, if the state permits recreational marijuana use, an employer should not engage in testing, unless there's some federal law that governs or there's some very specific reason that's tied to the employee's ability to perform the specific job.
If there is some specific reason that that job has a safety concern or there is some need for testing, then the employer needs to be consistent and test all of the employees who are subject to those same job related conditions and take into account the fact that there might be discrimination claims that could arise. So, one example is, if you're choosing to test everyone who's in a specific job role and not another, and it just so happens that people in the job role is being tested generally tend to fall into a specific protected class, more of them are of one particular race or gender, and then the others who aren't being tested are not in that specific race or gender category, then it might appear to have a discriminatory impact, and that could cause some concern. So the important thing is really to tie it specifically to the job requirement and why they can't have marijuana in their system for that job requirement. And that does tend to line up with safety concerns.
In states that permit medical marijuana, you can give a test through an employer, but if the employee tests positive, then the employer has to be open to receiving evidence of authorization for medical marijuana usage. And then, of course, they need to engage in some balancing test or consideration of whether medical marijuana is a reasonable accommodation with the job responsibilities. And again, that would go back to safety concerns. In states that don't have laws permitting the use of marijuana, then the employer can test, but they should still take into consideration concerns under the Americans with Disabilities Act and whether there may be some reasonable accommodation that can be made, especially in jobs where there isn't a specific concern based on the job responsibilities.
Amber Clayton:
Travis, did you have anything you wanted to add? Thank you, Dana.
Dana Feinstein:
Sure.
Travis Nelson:
I think, Dana pretty well captures it. One way that we look at testing for marijuana use and possession of marijuana in the workplace is to apply similar approaches as we apply to alcohol in the workplace. Now, one of the challenges for alcohol versus cannabis is that the body metabolizes alcohol a lot faster than it does cannabis. So, if last night you had four martinis at lunch or at dinner, that would be washed out of your system and you may have a headache the next day, but you wouldn't necessarily be impaired either getting to work or being at work. Cannabis doesn't metabolize out of the body as fast. So, if you're using cannabis last night for adult use or medical purposes, you may still test positive today. And that's part of the challenge of the HR world is you have a drug that it may be legal under state law and the person's allowed to use it, but when they're tested for it, it may still show up even though they're not under the influence.
So what's HR to do when someone walks in and they think the person might be under the influence? Merely having cannabis or THC in your system does not equate with being high at work. And that's a challenge, because you give them a breathalyzer, do you engage them? And generally, the industry has come up with an approach to trying to determine whether someone is at work impaired, not quite like a field sobriety test, but in the same theme. One, would they have slurred speech or inappropriate speech, unusual sexual innuendo or jokes in the workplace? Perhaps any sexual innuendo or jokes in the workplace is disfavored. But particularly, if it's unusual and perhaps atypical for someone either in that role, or that work setting, or just that person. Red or glossy eyes, loss of focus during conversation, loss of coordination in terms of walking, hand-eye movements, any dramatic increase in their appetite, and/or strange eating habits. If they're hanging around the Funyuns and the donut tray all morning, that may be an indicator that they may be high. Lack of energy, loss of motivation, emotional behavior that doesn't match either their normal personality or the situation.
And finally, and this is one of the best giveaways, the smell of marijuana on the employee. A lot of habitual users of marijuana will have some air freshener with them, they'll put it in the glove box. If you get pulled over by the cops and you have a bunch of Yankee Candle or bath and body work sprays in your glove compartment, that may be an indicator that you may be driving while high.
Amber Clayton:
Yeah, and a bunch of breath mints.
Travis Nelson:
I think that's why. And different workplaces have different approaches for how to handle that and who's to handle that. Sometimes, you'll have a designated person from HR or corporate security who will be in charge of evaluating it. Typically, you probably wouldn't want to have somebody in the person's working group or reporting chain being the person who makes the determination as to whether or not they're under the influence. Of course, discretion is important, profiling, any discriminatory application of these approaches. And so, when we go through that list, a lot of those factors are also present in alcohol use. And if someone has a couple martinis at lunch and comes back to work, they may also have erratic behavior. They may also tell inappropriate jokes. They may also have emotional outbursts, or different food appetites, or whatever it might be. It's a tough balancing test for HR professionals to have to tackle. And, quite frankly, one that I don't envy.
Amber Clayton:
Well, that actually brings up a question that I've heard before, and that's, if we don't typically drug test, if we don't have a policy on drug testing, whether it's pre-employment or during employment, if we suspect that someone is under the influence of drugs like marijuana or alcohol and we observe some of these behaviors, what can we do? Can we drug test even though we don't have a drug test policy? Or can we take some type of disciplinary action? What would your recommendation or your advice be on that?
Dana Feinstein:
Sure. So it's important to remember, even in states where marijuana use is totally legal, even recreationally, it's never okay to be under the influence at work or on work premises. You can't step outside for your break and lay up a joint, even in a recreational state, you can't.
Amber Clayton:
Oh, I know.
Dana Feinstein:
And so, as Travis mentioned, it's important to have a policy and it'll certainly protect you to have that policy and say that you are consistently following your policy. If you don't have a policy and this situation comes up, it's still okay to take action against someone who's visibly impaired at work. Of course, consistency is still important. So, if you're taking action against employee A who's clearly impaired at work, and then three weeks later employee B shows up and is impaired at work, but you like employee B better and you don't say anything, that's possibly going to open you up to some legal action, or at least not look very good. But if you're taking action consistently, even in the absence of a written policy, that is okay, and you could still take whatever action you feel is necessary. And generally, even if there's no specific policy on marijuana testing, an employee handbook would have a catchall phrase that would entitle the employer to take disciplinary action up to and including termination. So, it should generally be covered, I would think.
Amber Clayton:
And maybe, that would be under our code of conduct policy perhaps.
Dana Feinstein:
Yeah, I think so. And as Travis has said, this really is analogous to alcohol. And I think, policies often cover that. But, I do think it's important to say, these policies are not exhaustive, and they're not meant to be exhaustive, and usually they have a specifically written caveat that they're not exhaustive. So, an employer can still take action, even if it doesn't specifically say in the employee handbook, "Employees may not be high at work."
Amber Clayton:
And that applies to someone who also may be under the influence with medical marijuana? Or is that a situation where you have to engage in that interactive process to determine whether or not there's a disability, and then whether or not a reasonable accommodation needs to be made?
Travis Nelson:
Yeah, that's a great point. Now, the issue with either adult use of recreational marijuana, or medical, a lot of states, Illinois is a great example and New Jersey as well, they basically say that you can't punish or take an adverse action against an employee for conduct that is otherwise legal that they engage in offsite. So, if they have a joint at lunch or the night before, if it's legal under state law to do so off premises, you can't punish them for that. So, you couldn't have a policy that says, "We don't hire people that use this particular drug or substance." Unless, again, there's some bonafide occupational qualification. We don't want our surgeons to be pot smokers, but maybe the person that runs the gift shop, or in food services, or custodial services, or accounting... Well, maybe not accounting if we want to turn a profit every once in a while. Maybe those types of situations are okay. But again, having a policy that is widely distributed, and trained, and retrained in compliance, reevaluated, gap testing, that's really crucial, and that's crucial to avoiding HR and labor employment policies down the road.
Amber Clayton:
That actually brings up another question. And, with work schedules nowadays, many employers allow hybrid work, remote work. So, does this apply when someone is traveling from work site to work site, or they're working from their home? How does the off-duty conduct law... Let's say, I'm on break, but I'm working from home and I'm smoking a joint. What does that mean for employers?
Dana Feinstein:
That is a really good question. I mean, I think, well, just from a practical standpoint, if your work quality is not impaired as a result of you smoking your joint at home on break, then I don't think that the employer would have reason to know, and probably wouldn't have reason for concern if there's no tangible effect on your work quality. I think that to the extent that there is some effect on work quality and there's some effect on your behavior, as Travis was saying, that you're making an inappropriate joke or you're behaving differently, then that's a different story. Travis, what do you think?
Travis Nelson:
Well, that's a great question. And this goes into the patchwork of legal environment under state law. And, an employee, even if they're a remote employee, if they're working from home, or if they're a sales rep on the road all the time, their use of cannabis is of course governed by the law that they're in. Now, for those of our listeners that are in Texas, for example, you could drive five hours before you reach a state line, so California, New Mexico, Colorado, all those big wide open states out west. But, where I'm sitting here in Philadelphia, if I go eight miles to the left, I hit New Jersey.
Dana Feinstein:
Mm-hmm.
Travis Nelson:
If I go an hour south, I'm in Delaware. So there, the patchwork becomes much more important. And when you get into certain states around the country that have very restrictive cannabis laws... It's an interesting question for an HR person, that if you know your salesperson is on the road and maybe they're in New Jersey where everything's legal or California, but then they go down to Alabama, or they go to Idaho, or Iowa, or Oklahoma, or Texas where the laws are different, and you find out that they were engaging in illegal cannabis activities.
For example, Idaho, it's legal for no purposes. If you're into cannabis, Idaho is not your destination. If you have an employee that's on the road and they're in Boise, Idaho, and one way or another you find out that they use their cannabis recreationally there, perhaps they brought it with them across state lines and they were using it at their hotel in Boise or at a conference center, then what's the consequence going to be. Right? If we treat it like alcohol, certainly, alcohol's legal everywhere. But, if they use a substance illegally, then it causes different issues.
And again, this goes back to the issue of a widely disseminated and well-trained policy and procedure, having our employees know that any substance, or marijuana, or cannabis while legally used in your home state may not be legal in other states where our company has offices or where a company asks for you to travel for a company business. And, you'll always be expected to comply with the relevant state laws when you're on company time or traveling under the company's banner.
Amber Clayton:
That's a really good note. We do have questions a lot around, "Well, if it's their headquarters, do we comply with the law and the state in which our headquarters are located or the state in which the employee is actually performing work? And does it matter how many hours or minutes they work in that other state?" And, these are just some of the questions that we get. And they're very valid questions, because this can be really confusing. So, thank you for that.
One of the questions I had, and actually, I'm going to go back to testing here for a moment, because I understand that many employers do urine testing. I used to do urine testing working in the healthcare field. I actually was the one who administered it, unfortunately, as an HR person, which was really odd. But, I've heard about oral saliva testing, hair testing, is there any recommendation for those employers who have to do pre-employment testing? Obviously, we know the Department of Transportation has certain requirements, we know that,. But, for others that may not have those requirements under federal law, should they use a particular type of testing? And if so, why?
Dana Feinstein:
So, my understanding is that the detection time for marijuana is longest in hair testing, then comes urine testing, and then oral fluid testing would be the easiest way to test for the most recent use of marijuana. So, my understanding is that the oral fluid test picks up marijuana for about 12 to 48 hours prior to the test. So, there have been some legal decisions that have favored the use of the oral fluid test, because it tests for the most recent consumption, which is most likely to be relevant as to whether someone's actually impaired. And, I think, what employers care about most is whether the person is impaired to do the job, not whether they have some use on their personal time generally. So, I think, any of the tests are okay, and they're all permissible in a state where testing is permissible. But, there are some decisions out there that say oral fluid is the best.
Amber Clayton:
Great. I'm going to ask a crazy question. And I've never done hair testing before, but I'm just imagining, "Here, let me bend over, let me pluck a hair out of your head." Or, do you cut the hair? What is the practice when it comes to hair testing?
Dana Feinstein:
I am not actually sure of the specific practice, but I would hope that they would cut the hair and not pull it out.
Amber Clayton:
I know. I'm imagining, "Oh yeah, let me see. Oh, you've got something in your hair." Pluck.
Dana Feinstein:
And there you go.
Amber Clayton:
"Now, I'm going to test your hair."
Travis Nelson:
All right. Well, that's an interesting point. Now, one aspect that I imagine employers who have to focus on is consistency as to the tests that they use. Dana, in your work, do you find that most employers tend to adopt one testing model or testing approach and make that uniformly applied across the company?
Dana Feinstein:
Yes, absolutely. So, yes, to your point, let's not make the decision based on who has the longest most flowing hair that we can tear a piece for the test. But yes, no, consistency is always so important in the administration of employment law. So, yes, generally employers will have some system in place where, let's say, someone perceives that someone smells like marijuana, they're acting funny, they're hanging around the donut tray, as Travis said, that person might be sent to corporate health and administered whatever test corporate health does. So, whether that's fluid or urine. And then, evaluated with the behavioral test as the company does, and it's standard practice.
Travis Nelson:
Right. And that's a great point. I mean, not only consistency, but also, ease of administration. As Amber noted, we have real people on the front lines in our HR departments that have to administer these tests. And, these are colleagues that are going to have to work together tomorrow. So, you want to avoid any awkwardness and you want to have it uniformly applied. In terms of timing, you don't necessarily need to or want to make drug testing predictable, because they'll plan for it, and it may defeat the efficacy of the testing. But having a uniform approach, in terms of the model of testing, the location, the circumstances, the testing professionals. You want to make sure our testing professionals are well-trained, so that their competency isn't challenged later. And not just well-trained in terms of administering the test, but also knowledge of the law as to when the test can be given, the circumstances.
Also, any considerations. I mean, one interesting part that I've always marveled about the HR departments is that, unlike other substantive groups and perhaps more than any substantive groups, there's a human dimension to it and how you relate to our employees. And, look, this isn't a field sobriety test, this isn't a traffic stop, this isn't a locker raid at your kid's high school locker. These are our colleagues. And, right or wrong, we still have to work with them after the test is over.
Amber Clayton:
Absolutely. Thank you for that. You mentioned, Dana, the long flowy hair, and in my mind I'm thinking, "What if the employee doesn't have any hair?" You can't consistently apply your drug testing if you have hair testing and this person has no hair to collect.
Dana Feinstein:
Yeah, that's a great point. I will say, I've never seen the hair testing done. I know it's an option that is discussed, and there's been some case law, and agency discussion of it, but I haven't actually seen it done, which is why I couldn't answer your question about the pulling out versus the cutting of the hair.
Amber Clayton:
And I know that it's not common. It's just, in the Knowledge Center, we get so many inquiries from our members. We answer about 55 to 60,000 inquiries a year. And, you can only imagine some of the questions that we get. And we do get some of these questions and we're like, "Wow, that's a really good question that we don't have an answer to, so you might want to consult legal counsel." We try not to do that. But we want to be able to help our members. But sometimes, it's just one of those things that you just can't find the law, or there isn't a law. And, we need to refer them to look into a little bit more. And especially with marijuana, because this is still fairly new territory, even though we've had the legalization of marijuana for years now, each state is coming up with something different that employers need to comply with. So, again, just a confusing situation for employers.
Dana Feinstein:
Absolutely. Well, I always say with employment laws, if you're not surprised, you're not doing it right. There's always a new situation that comes up. So, yeah, it's hard to stay on top of, definitely. And, each state does have its own preferences, for sure.
Amber Clayton:
Okay, I'm going to use that if you're not surprised, you're not doing it right. So, you mentioned, Dana, about recreational marijuana and employers not including that in their testing. What's the risk to employers if they don't have a policy on testing for marijuana and an employee has an accident or they've done something that hurts someone else or kills someone else? What's the risk to the employer in those particular situations?
Dana Feinstein:
There is some risk of vicarious liability for a workplace accident. I guess, the important thing to note is that if there's a workplace accident generally, and it's done in furtherance of the job, let's say, a truck driver gets into an accident on the road, there could be vicarious liability anyway, just because that person was fulfilling their job duties, they were on duty and working in their job capacity. If the person is under the influence, then there's a very strong argument that they were not working in their job capacity, even if they were, say, driving their truck, because using marijuana is not part of their job responsibility and is not expected. That being said, there could be some risk that opposing counsel could say, "Oh, well, you should have tested this person and you didn't. And therefore, you were negligent in supervising them."
Now, if it's a safety specific industry, they should be testing them. And I think that's a huge risk not to. If it's not, let's say, in an administrator who works at a desk all day, and they are under the influence, and they cause some sort of workplace accident because they trip and they hurt someone in the workplace, I think there's less of a risk that there would be liability found, just because it's so out of the norm and the employer wouldn't have any reason to suspect that something like that could happen. But it really is a fact specific determination, and there is always some risk of negligent supervision, negligent hiring potentially, vicarious liability for some accident. Travis, anything to add there?
Travis Nelson:
No, I think that's right. Again, having that uniform application, considering state laws, like in Illinois, where what you do on your own time is really none of the employer's business, as long as it doesn't impact the workplace. But again, consistent application in terms of testing, in terms of the demographics, in terms of the job occupation, will allow an employer and the HR personnel to achieve their goals without exposing the company to any risk. Where you may run into trouble is where you do testing in a haphazard way, not only from a discrimination perspective, "You're only testing me because of my skin color, my religion, my age." But also, you're looking at what could have been done.
So, something happens in the workplace and the plaintiff lawyer says, "Well, there were measures you could have taken." And in fact, you did take them. Right? Now, you've been testing once a month for the first six months of the year, but you discontinued it. Why do you discontinue it? Was it for cost issues? Do you not take compliance seriously? Do you not feel like investing in new policies and procedures? So anytime you have injuries that could have been reported or avoided by remedial measures or preventative measures, and you don't take them, you expose yourself to increased liability.
Amber Clayton:
As far as policies, we've gotten this question before, if we don't have a policy now, and then something happens, and we're reactive, and we start to drug test our employees, is that going to look negatively upon the employer, because they're starting this, and moving forward, they're going to do it. There's always that question of, "Well, we've never done it this way before, but now we want to because Joe was under the influence and we want to have a policy of testing now."
Dana Feinstein:
I get that question a lot. And I do understand where it's coming from, from the perspective of it almost highlights the employer's failure to have the policy before. At the same time, I think, there's a very strong argument to say, "Now, you've been put on notice that this is an issue and you still didn't enact a policy." Isn't that worse? I think it's better to enact the policy and take whatever hit it might incur, but prevent the possibility that you could be seen as being too lax, or not taking action, or not taking the concern seriously going forward. Plus, as Travis has said, I think, having a policy is always better. So, any opportunity to get one in place that you can therefore have something in writing and have it be administered consistently is always best.
Amber Clayton:
And again, I like to go back sometimes I think of these questions as you're talking and I'm like, "Oh, yeah, I want to ask about that." ADA, the Americans with Disabilities Act, we get a lot of questions from our members around disability accommodations. What type of accommodations would someone who is taking medical marijuana, what types of accommodations have you seen or discussed with your clients?
Dana Feinstein:
Well, I guess, the most important thing is to understand why they're taking the medical marijuana. So the accommodation may just be permitting them to use it, right? People use medical marijuana for a whole host of reasons. They may use it in connection with cancer treatments. They may use it in connection with PTSD, with anxiety, with other mental health concerns. So, I think, it really would take a fact specific determination of what the issue is and what accommodations the employee feels that they need. The important thing with the ADA, as I'm sure you and the listeners all know, is the interactive process. So, the ADA doesn't require you to give the specific accommodation that the employee requests, but it does require you to engage in a back and forth and a substantive dialogue about what the employee needs, why they need the accommodation, and a deep consideration of what they're asking for.
So, an employee might ask for an accommodation that is just not workable for the company, and the employer can say, "Noted that accommodation." But they need to at least come back with something else that could work. It's really just a back of the forth exchange, and it should be no different here. So, if an employee needs medical marijuana and they have a specific health issue that they need it for, they can bring that to the employer and have that back and forth, substantive, interactive dialogue and come up with something that works for both the employer and the employee. And like I said, it doesn't have to be the initial request specifically, but it does have to make a good faith attempt to accommodate the employee to the extent possible.
And I will just add too, there's no magic words that are required to trigger that obligation to have the attractive dialogue. So the employee doesn't need to say, "I need an accommodation because I use medical marijuana." It could be as symbol as you know that the employee... Somehow, you hear that the employee needs to use it, or the employee mentioned something about it to someone else, and you get word of it. Anything that means that the employer could or should have known about it may trigger the obligation to at least engage in the interactive dialogue.
Amber Clayton:
Got it. So, what types of questions do you get or have you gotten from your clients around this topic that we didn't cover in this conversation so far?
Dana Feinstein:
Travis, I'm going to send that one to you.
Travis Nelson:
Sure. Well, this goes back to the phenomenon of the hodgepodge patchwork of state laws. And, particularly for our clients, in either the healthcare industry, or the manufacturing industry, or the retail industry that have stores in multiple jurisdictions, and they wonder, "How do we stay on top of these things? And what if a new regulation goes through one state, or a law comes through another state, or a court opinion?" I subscribe to a listserv at our firm that gives me any case mentioning cannabis or marijuana that's issued anywhere. I've got a lot of questions from IT as to why I was looking for that. But, we see a lot of legal developments coming out of the courts, especially in the labor and employment setting, workers' comp insurance, accommodations, lawsuits about even loss business deals where cannabis was that issue.
And this, again, goes to the difficulty that employment and HR staff has to deal with here. How do they monitor for it? By subscribing to appropriate listservs or trade associations that keep you updated on labor and employment and HR, keeping abreast of those issues as they come up. And when it does come up, then how to properly implement it. I would almost say there's a cooling off or a grace period after there's a development in most cases. So, watching for the development, taking time to review the new development, whether it's legislation, regulation, or cases, conducting an industry and peer group analysis, seeing how our competitors are doing, whether good things or bad things are happening to your competitors, there's always an opportunity for learning. So seeing how your peers are reacting, how the trade associations and industry groups are reacting, and then develop a thoughtful and considered implementation strategy that includes revisions to existing policy and procedures, dissemination of the new policies and procedures to all employees, and training to relevant stakeholders.
What do I mean by relevant stakeholders? The people who are going to have to police or compliance. Certainly HR, security, line of business heads, and the like. One interesting aspect of this that I don't think we've touched on is, and Dana may have some thoughts, should an employer ask... And this goes into the policies and procedures, should they ask ahead of time, do you use these medications? Because on the one side, I think, well, that may pry into their disability, right? There are certain drugs that are only used for certain types of illnesses. If an employer doesn't know the person has an illness, then they can't be accused of discriminating on the basis of that illness. Even though, as we've seen there, if you're perceived as having an illness, that may be enough. But likewise, how are you supposed to reach the accommodation if you don't ask? And maybe the onus is on the employee to bring it up. Dana?
Dana Feinstein:
Yeah, I would definitely be cautious about asking an employee to provide a list of their medications. I think that is a huge can of worms, and would probably cause way more problems than it could possibly solve, and would definitely get in the way of employee privacy, and lots of issues from an HR perspective there. I think the best way, as you said, is to let the employee come to you, or let the knowledge come to you. Like I said, the employee doesn't have to come and say, "I need accommodation because I use medical marijuana." In those specific words. But at least, I don't think the employer has to take any affirmative steps to root out people who need accommodations. They only have to be open to discussing the accommodations when they have reason to know that the employee needs it or when the employee brings it to their attention.
Amber Clayton:
That makes sense. So, let me ask you this. Do you think that we're moving in the direction where marijuana is going to become legal under federal law?
Travis Nelson:
I'll take that one. It's interesting. There are a couple facets to this. One, we have a generation that is growing up in an era where marijuana is much more accepted. So, we look at historically, the evolution of cannabis from the 1930s, when movies about cannabis talked about zombies, and vampires, and it's an adults only film because it mentioned cannabis in it, to back in 1978, Chechen Chong's, Dazed and Confused, where you had an image of Chechen Chong in a van in Santa Monica with purple carpet on the dashboard and rolling a blunt the size of a hot dog and a drum kit in the back. For many people's generation, my grandparents, that was the image of potheads roaming the streets of Los Angeles where I grew up.
Then you fast-forward to Bill Clinton almost getting his campaign derailed in 1992 because of alleged cannabis use. His response was that, "I never broke a state law regarding cannabis." Of course, he didn't. He used it while in England. To Obama, who was very upfront about his cannabis use. To New York, last two years ago, legalizing recreational cannabis. New Jersey, Pennsylvania, California to it being widely accepted, to magazines of periodicals targeted at the retired generations that talk about the beneficial uses of it. We're seeing a lot of benefits in the area of epilepsy, and wasting syndrome, and treating people who are on chemo or AIDS patients to help cure that. So there are definite scientific benefits. In terms of the movement towards legalization, in addition to changing attitudes, the real obstacle over the last many years has been the Senate. Even when the Democrats control the White House and both houses of Congress, they still couldn't get a cannabis reform bill pushed through, I believe it was called the More Act, which would've descheduled cannabis on a federal level. They weren't able to get it done.
When will we get it done? When purple states start passing it on their own laws. Right? So, Senator Warnock of Georgia, a great liberal progressive, but he may be a hard sell on legalizing cannabis of his state. Joe Manchin, Democrat from West Virginia, another hard sell perhaps. But when the people of their own state start passing legalization laws, if we see statewide legalization in Texas, if we see statewide legalization throughout some of our southern states, in Florida, in Alabama and West Virginia and Kentucky, then the senators that are representing those states in the U.S. Senate will change their mind. I haven't seen any instance of a U.S. senator opposing legalization of marijuana where it's fully legal under the laws of his or her home state. But I think that's what we're waiting for.
Amber Clayton:
Great. Thank you. Well, before we wrap up our show today, what is the last advice that you could give to our audience, the employers, when it comes to marijuana in the workplace?
Dana Feinstein:
I think what we've been saying throughout consistency is always key. Have a policy, stick to your policy, don't treat people differently when their situations are the same. And, that should eliminate a lot of the issues that could arise. And then, after that, I think it really comes down to a fact specific question a lot of the time. Travis, what do you think?
Travis Nelson:
I agree, Dana. I think, the real key is to be on the frontline in terms of learning, being involved with your trade associations, being involved with your industry groups, communicate openly with peer groups, peer industries, peer companies, and share the knowledge. Share the knowledge as to emerging legislation, case law and regulations, but also how you're handling it in your workplace. These aren't trade secrets. This isn't the patent on New Koch. This is an environment and an area where we all win if we share our knowledge and experiences in this issue. So, be open, have a dialogue with your peers.
Amber Clayton:
Great. Thank you very much. And if we have listeners who have legal questions that we might not be able to answer in the SHRM's Knowledge Center, is there a website that they could go to reach out to Holland & Knight?
Travis Nelson:
Sure. Our website is www.hklaw.com, or they can reach out to us directly through email at Travis T-R-A-I-S, .Nelson, N-E-L-S-O-N, @hklaw.com. Dana?
Dana Feinstein:
Mine is Dana, D-A-N-A, .Feinstein, F-E-I-N-S-T-E-I-N, @hklaw.com. And, Travis and I would both be happy to help.
Amber Clayton:
Great. And again, as listeners and Travis mentioned this, constantly learning, we have some great resources at SHRM, so you can actually go to our website at SHRM.org. That's SHRM.org. We have many resources on this topic. And again, our advisors with the Knowledge Center can help you out with some of those situations as well. We can't give legal advice, but we can definitely give you some guidance and resources to help you navigate those sticky situations. Well, we've come to the end of our show. Thank you, Travis and Dana for taking part in this episode today.
Dana Feinstein:
We're happy to be here.
Travis Nelson:
Thank you.
Dana Feinstein:
Thank you for having us.
Amber Clayton:
This podcast is approved to provide one PDC toward SHRM-CP and SHRM-SCP recertification if you listen to the full episode. After listening, you may enter this activity ID into your SHRM activity portal, 25-E26PQ. Again, that's 25-E26PQ. Also, please note that this activity ID expires January, 2025.
Wendy Fong:
If you haven't already, please subscribe, so you'll never miss an episode. And be sure to rate and review the show wherever you listen to podcast. So, feel free to reach out to me. You can find me on Twitter and LinkedIn. And if you'd like to learn more about Honest HR podcast, about myself, or the other co-host, or to get additional information and resources on what was discussed in today's episode, head on over to SHRM.org/honesthr. And to learn more about SHRM podcast in general, check out SHRM.org/podcast. Thanks again for joining us on Honest HR. Until next time.