If one of your employees failed a drug screen, what would you do?

If you’re like most employers, you have clear procedures on how to respond, particularly if you fall under federal guidelines.

Now, what would you do if that same employee suddenly flashes a registry identification card issued to him under Maine’s new medical marijuana law? Do you follow the same procedures?

Maine’s new law is about to change all the rules on drugs in the workplace. Many of the personnel procedures that businesses have in place just went up in smoke with the new law.

CONSISTENCY IS KEY

Now an employee who is a “qualifying patient” and who has been issued a registry identification card is protected against disciplinary action for the use of medical marijuana.

In addition, employers cannot refuse to hire and cannot penalize someone just because they are registered as a qualifying patient.

So what are employers supposed to do? Is it now acceptable to come to work stoned?

Well, there is a lot more that we don’t know about the new law than we do, but the short answer is, the law does not permit a person to perform any task while under the influence, and that includes operating a motor vehicle.

So let’s look at what we know about the law.

To begin, the law does not require an employer to allow the use of a drug at work or permit an employee to work under the influence. While it may be difficult for a manager to prove that an employee is impaired, employers can still demand that employees are fully able to work before they report to work.

When faced with an employee you believe is impaired and under the influence, document your findings, focus on observable behavior and unless you’re a medical doctor, don’t diagnose. In fact, even if you are a doctor, you might want to refrain in this case, too.

Treat the use of medical marijuana in the same manner that you would deal with other prescribed medications that would impair an employee’s ability to safely do the job — particularly when operating dangerous equipment. Consistency is the key.

ILLEGAL UNDER FEDERAL LAW

While Maine law allows the use of medical marijuana, it is still illegal under federal law. As a result, employers will have to deal with employee situations differently, particularly when faced with federal government mandates.

As an example, employers who fall under federal guidelines, such as the federal Department of Transportation rules, must still follow their rules including the testing mandates. As a result, any worker who tests positive for drugs, including marijuana, cannot report to duty, remain on duty or perform safety-sensitive functions.

In addition, the employer may not permit the worker to perform any safety-sensitive functions until the worker has a substance test indicating a negative result.

However, it is not clear what employers can do next.

Sending an employee to rehabilitation would be the next logical step, but how do you rehabilitate someone who has been medically prescribed the drug? Termination may also be out. So what should employers do?

Since federal guidelines do not allow an employee to resume driving, for example, with a positive drug screen and since marijuana stays in the body’s system for weeks, employers may be forced to place an employee on medical leave until he gets a negative test result.

Employers will need guidance from the Legislature or the courts on this and should consult with a lawyer in the interim.

Employers may find themselves in a difficult spot — caught between a new law legalizing, in limited situations, what is illegal under federal and in most state laws. And what complicates it more, guidance from the state is slow in coming. Without it, employers may have to wait for the courts — and no one wants to be the test case.

In the interim, employers still must run their businesses and should put procedures in place for dealing with employees who are allowed medical marijuana. In addition, employers should continue to follow federal requirements including the mandated testing.

CONSULT LEGAL COUNSEL

However, do not terminate employees who test positive without consulting legal counsel first. Consider putting these employees on medical leave. And if you currently have a state-approved drug testing policy, consider excluding the testing of medical marijuana.

Educate your managers and supervisors on the changes in the law so they can properly handle these employee situations. And finally, consult with your attorney before taking any adverse actions with an impaired employee or those who test positive on a drug screen.

There is a lot we still don’t know about Maine’s new medical marijuana law.

We are in uncharted territory, and it is safe to say that it is only a matter of time before many employers will be faced with an employee who is legally using marijuana.

Take what steps you can to prepare now, including updating your policies and procedures and training your managers and supervisors. In the short term, dealing with this new law is going to complicate managing your work force.

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