PRLA Restaurant & Lodging Matters Fall 2019

Fall 2019 • PENNSYLVANIA RESTAURANT & LODGING matters •  25 Can an employer discipline an employee for being under the influence of medical marijuana in the workplace? Yes, but only when these two specific conditions occur simultaneously: • The employee is under the influence of medical marijuana while at work. • The employee’s work performance has fallen below the acceptable standard for the assigned position. Both conditions must be met for an employer to discipline an employee who is a medical marijuana patient. Is a lab drug screen sufficient to prove an employee is under the influence of medical marijuana at work? No. A laboratory drug test is not able to prove the time of use to show current impairment. Drug testing will show that there has been use of marijuana over the past several days, weeks, or months (depending on the type of test performed). However, for safety-sensitive positions, “under the influence” is determined by a blood content of more than 10 nanograms of active tetrahydrocannabis (THC) per milliliter of blood in serum. How can employers protect themselves? Review, update, or create solid job descriptions. • Specific job descriptions are essential for safety-sensitive positions. An employee’s job description is imperative for outlining the official “standard of care” or expectation or performance for any specific job position. • Outdated, inaccurate, or vague job descriptions will greatly impede an employer’s efforts to establish that an employee’s conduct fell below the expected standard of care, or norm. • Some tasks or duties considered potentially life threatening or posing a public health or safety risk might be obvious; whereas, others may not be so clear cut. Specifically identifying these tasks in a detailed and signed job description will help employers support their stance when the need arises. Other employer considerations • Review current or create new drug and alcohol policies or post signs throughout your workplace state exactly when and why a drug test will be performed, for example: pre-employment, random, post-accident, reasonable suspicion, return-to-duty. Be sure to include how consequences for failed tests will be enforced. • Create a written substance abuse policy that spells out your rules and expectations. • Clearly state that medical marijuana use while working is not acceptable behavior. • Develop a process to review reasonable accommodation requests for medical marijuana cardholders. • Update equal employment opportunity policies to include potential employees who are currently medical marijuana cardholders. • Have a policy securely in place for handling workplace violations and keep detailed records of such violations. • Educate employees and use signature acknowledgement forms when a policy is altered or changed. • Raise awareness toward drug and alcohol policies on an ongoing basis by including such policies in company newsletters, as well as safety, team, supervisor, and staff meetings. •