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Changing Marijuana Laws and Effective Drug Testing PolicyAlthough marijuana is classified as an illegal drug under federal law, a majority of states have now legalized its use in one form or another. This rapidly evolving legal landscape presents new challenges for employers, particularly those with offices and employees in several states. Employers must balance complying with often divergent federal and state laws, maintaining a safe work environment, and protecting employees’ rights. Although difficult at times, there are steps employers can take to help successfully navigate this legal minefield.

Maintain a Safe Workplace

Workplace accidents can have significant effects on multiple areas of a business, including insurance costs, personal injury claims, third-party claims, and employee satisfaction and productivity. An employee’s impairment from drugs or alcohol can seriously increase the risk of injury to persons and damage to property. Accordingly, most employers have zero-tolerance policies that ban the use of alcohol and illegal substances. Although zero-tolerance policies typically permit an employee to avoid adverse employment actions by disclosing the use of prescription drugs prior to a positive drug test, these policies otherwise prohibit the off-site consumption of alcohol or drugs that will result in a positive test. The legalization of medical marijuana in a number of states has made maintaining a zero-tolerance policy more difficult.

In some states, employers must accommodate an employee’s use of medical marijuana. For example, in Noffsinger v. SSC Niantic Operating Co., LLC, a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user. Similarly, Oklahoma law prohibits employers from discriminating or punishing an employee based on the employee’s status as a medical marijuana card holder or a positive drug test for marijuana or its components unless the employer would lose a benefit under federal law or regulations. Although these statutes do not prohibit employers from disciplining employees who consume marijuana, or are under its influence, while on the job, it may be difficult to determine when an employee is actually impaired and a drug test is warranted. This difficulty can give rise to liability for discriminatory drug testing or wrongful employment actions in instances where a contractor is mistaken.

Other states that have legalized medical marijuana do not require accommodation of employees’ use. In California, for example, an employer can dismiss an employee who tests positive for marijuana and its components. Likewise, under Ohio law, employers are not prohibited from refusing to hire, discharging, or disciplining a person because of the use or possession of medical marijuana, nor are they prohibited from establishing and enforcing a zero-tolerance drug policy.

Between these two ends of the accommodation spectrum, a number of states’ laws provide for varying levels of accommodation for employees’ medical marijuana use. In Illinois, for example, employers are prohibited from discriminating against employees and job applicants who qualify as a medical marijuana patient unless the accommodation would result in the violation of a federal law or the loss of a federal benefit. Nonetheless, Illinois employers may still impose reasonable limitations on the consumption of medical marijuana and enforce zero-tolerance and drug-free workplace policies as long the policies are applied in a non-discriminatory manner. Other states, such as Delaware, Nevada, New York, and West Virginia, have similarly varied degrees of required accommodation.

To help navigate these nuanced laws, employers, especially those with a multi-state footprint, should develop a well-defined drug policy and administer a drug testing program in a non-discriminatory manner.

Develop a Well-Defined Drug Policy

Developing a well-defined company policy on marijuana use can minimize the risk of harm to persons and property, and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will open the door to liability for adverse employment decisions. At a minimum, employers should ensure that a company drug policy:

  • Defines the terms “marijuana,” “cannabis,” or any other derivation of the drug. Simply prohibiting the use of “illegal drugs” can create ambiguity because of marijuana’s legal status in various jurisdictions.
  • Indicates that the use of marijuana, whether recreationally or on the job, is strictly prohibited.
  • Articulates drug testing policies and procedures (including penalties for failing a drug test).
  • Educates employees on clinical issues relating to marijuana, such as its effects on the body, the length of time it can continue to impair cognitive and physiological functions, and the potential impacts on workplace safety and performance.
  • Is included in recruiting and new-hire onboarding materials to ensure notice to the individual.

Consistently Administer a Drug Testing Program

Once an employer adopts a drug policy, it is critical that drug tests are conducted uniformly for all employees. Failure to do so can subject an employer to liability for discrimination claims that arise from adverse employment actions.

If an employee tests positive for marijuana, the recourse available to an employer can vary greatly under federal and state laws. For example, the Americans with Disabilities Act (ADA) currently does not shield an employee from adverse employment actions for using marijuana to treat a disability, even if the employee refrains from using medical marijuana while on the job. The ADA exempts from its scope the “illegal use of drugs” and defines that term to include any substances that are unlawful under the Controlled Substances Act, which currently lists “marijuana” as a banned substance. As a result, at least under the ADA, employers can terminate an employee who tests positive for marijuana, even if that employee is disabled, prescribed medical marijuana, and only uses marijuana on his or her own time. Note, however, that under the ADA, if an employee discloses a disability and requests an accommodation, an employer is required to consider reasonable accommodations, which could include transfer to a non-safety sensitive job (where the marijuana use may not pose a safety concern) or temporary leave during treatment.

By contrast, as discussed above, some states require an employer to accommodate an employee’s use of medical marijuana and prohibit an employer from terminating an employee for a failed drug test for marijuana use. Employers should be mindful of the potential for conflict between their own drug testing policies and requirements mandated by federal or state laws. If there are questions as to what actions an employer can take against an employee for failing a drug test, the advice of legal counsel should be sought.

The Measure of Success

An effective drug policy decreases hazards and promotes an accident-free work environment. While state and federal laws meant to promote this goal may seem straight forward when read in isolation, problems arise when these laws overlap or conflict with one another. The growing number of states legalizing marijuana use, and the nuanced differences between laws, will only amplify this problem. Although all employers need to implement well-defined policies and procedures, it is particularly important that those employers operating in any of the 30 plus states in which marijuana is now legal in some form take time to review current policies and evaluate the need for changes to ensure employee safety and reduce company risk. If you have questions about this rapidly changing legal issue, you should contact an attorney with experience in this emerging area of the law.

I Should Have Written That Down! 5 Quick Tips for Documenting Employee IssuesWe routinely receive calls from employers who want to terminate an employee (or have been sued for doing so) but do not have a good paper trail to support their decision. Usually, we hear that the supervisor has talked to the employee repeatedly about performance or tardiness or other problems and is “done” with the employee. Of course, the supervisor has little or no documentation of these repeated discussions. To fire or not to fire? That is the question.

Without documentation, the terminated employee inevitably claims that he or she was never warned and had no idea there was any problem with performance and, thus, the termination must be discrimination based on [fill in the blank]. Without sufficient documentation, termination decisions are more difficult to explain, result in factual disputes that prevent early dismissal of a subsequent lawsuit, and typically cost more to defend. However, this is one of the easiest issues for employers to address. We often provide our clients with supervisor training on documentation, and this post will focus on five of the most important tips we recommend.

  1. Don’t be afraid to document.  Many supervisors believe that documenting an issue will upset the employee, ruin a working relationship and create conflict that they would rather avoid. While that may be true, by failing to document issues, supervisors are not protecting themselves or the company. Seasoned human resource professionals will reject a supervisor’s request to terminate an employee for a chronic issue if there is no documentation.
  2. Don’t sugar coat.  The worst mistake an employer can make is to give undeserved, or even false, written praise or a positive review to avoid confrontation. If an employee is not performing well, don’t dance around the issue in a performance review or other documentation. We once had a client that terminated an employee for poor performance and was sued for discrimination. When we reviewed the employee’s personnel file, we found that in the latest performance review, the supervisor referred to the employee as “Rock Star.”
  3. It’s okay to document a verbal discussion.  Just because an action may not warrant a written warning or is the first incident doesn’t mean it isn’t worthy of documentation. A simple note in the file saying “I talked to Jimmy today about his production and the need to do better” memorializes the conversation and supports subsequent written warnings.
  4. Relate back.  When documenting an employment issue, refer back to prior warnings or discussions whether those warnings or discussions were documented or not. This is an easy way to correct the lack of documentation of an initial incident and to show the number of steps taken to address the situation. For example, “Jimmy received a warning today for not meeting his production goal. He only completed 25 items and his quota was 40. I talked with Jimmy about this same issue two weeks ago when his production was low and told him that the next time he would receive a write up. He said he understood, but his performance has not improved.”
  5. Use Human Resources.  Human Resources can help you word a written warning or counseling notation and avoid unnecessary mistakes. HR not only can provide guidance but will then also be in the loop on the employee issue and won’t be surprised when you later request more stringent action against the employee.

There is more you can do to improve documentation, including supervisor training, but hopefully, these five tips will get you started.

Just What Does A Racially Hostile Environment Look Like? The Eleventh Circuit Provides Some GuidanceWhat constitutes a racially hostile work environment? Is one really bad comment specifically aimed at the plaintiff sufficient or do you need a sustained series of racial comments? What if you have both but no evidence that it affects the person’s work performance? In Brenda Smelter v. Southern Home Care Services, Inc., d.b.a. Rescare Homecare, the Eleventh Circuit addresses those questions.

The Facts

From July 2 until September 9, 2013, Brenda Smelter, a black woman, worked for Rescare as a customer service supervisor. She struggled with her work and admittedly made errors, for which she was written up. On September 9, she got into a verbal altercation with a coworker and, given her prior performance issues and the fact that she was still in her probationary period, Rescare terminated her employment. Sounds pretty straightforward, right? Not so fast.

Although Ms. Smelter admits her skills may have been lacking, she claims that nearly every day of the eight weeks that she worked in Rescare’s Perry office two of her white coworkers made racist comments to each other. She testified that another customer service supervisor said:

  • Black men were “lazy” and “the scum of the earth.”
  • Black women “had babies on welfare.”
  • President Barack Obama’s “big ears” made him look “like a monkey.”
  • She did not know that black people could be buried on Sundays.
  • Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes.

Smelter said that the office manager also made racist remarks, including that she saw black people exiting a bus at a Walmart store and commented that it looked like they were “chained together” and that she wished she could “send them all back . . . to Africa.” Although she never reported these comments to a supervisor until the last day of her employment, she testified that the branch manager overheard at least some of the remarks and that these racist comments were “funny to everybody that worked in the Perry office” with her, even the branch manager.

The most severe comment came on Smelter’s last day at work, when she got into a heated discussion with the other customer service supervisor who allegedly jumped up, hit her desk in a rage, and said “get out of my office . . . you dumb black n       .” The branch manager investigated the altercation, and Ms. Smelter alleges that she told her about the prior racial comments and the epithet. Rescare concluded that Ms. Smelter started the altercation and terminated her employment.

Ms. Smelter sued for a racially hostile work environment and claimed that Rescare terminated her both because of her race and in retaliation for her report to the branch manager about the racial comments. Rescare moved for summary judgment, and the district court granted it. Ms. Smelter appealed.

The Eleventh Circuit’s Decision

The Eleventh Circuit agreed with the district court on the termination claims. The court found that Ms. Smelter had not offered evidence that Rescare’s reasons for terminating her were a pretext for race discrimination or retaliation. However, the court overturned the decision on the hostile work environment claim.

The court focused on whether Ms. Smelter had established that the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment. It looked at four factors, assessing whether a reasonable jury could find it severe or pervasive:

(1) The frequency of the conduct – Eight comments in the two months was sufficiently frequent.

(2) The severity of the conduct – The negative comments about black people made around Ms. Smelter, capped off with the epithet directed to her on her last day, were sufficiently severe.

(3) Whether the conduct is physically threatening or humiliating, or a mere offensive utterance – Although the conduct was not necessarily physically threatening, the daily racial comments were sufficiently humiliating.

(4) Whether the conduct unreasonably interferes with the employee’s job performance -Although Ms. Smelter had little or no evidence that the conduct interfered with her work performance, “considering the totality of the circumstances, particularly the daily frequency and extreme severity of the harassment, including racist remarks made directly to Smelter about her” the other three factors sufficed.

Finally, the court found that a reasonable jury could conclude that Rescare had actual notice of the racial comments because Ms. Smelter testified that the branch manager overheard some of the remarks and thought they were funny.

Keep in mind that the court has to view the evidence in the light most favorable to Ms. Smelter. In this case, the coworkers denied making any racist comments, and the branch manager denied hearing any such comments or thinking they were funny.

Takeaways

First, the court comes close to saying that the one incident with the racial epithet could be sufficient. Do not assume one time isn’t enough to make it a federal case.

Second, that an employee does not report harassment is not evidence that it didn’t bother him or her. The court specifically notes that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment as hostile or abusive. So, if a supervisor witnesses conduct that may be close to the line but the employee does not react to it—investigate. Do not assume it will go away.

Third, an employee does not have to prove the harassment unreasonably interfered with work performance. If the other factors are strong, the absence of this one is not fatal.

Finally, Rescare won the termination claims. Given that the company terminated someone the same day that she reported that she had just been called the N-word, that is pretty amazing. Apparently Rescare had properly documented Ms. Smelter’s performance deficiencies. So, make sure you are addressing performance issues, even with probationary employees.