Marijuana Use and the Workplace: What Hotel Operators Need to Know
By John Welty President, SUITELIFE Underwriting Managers, Ryan Specialty Group | March 22, 2020
"For the times they are a changing." When Bob Dylan wrote those lyrics in the early 1960s, he likely never imagined where we are as a society today. Much has changed since the 1960s and arguably, most changes have been for the better.
One thing that had long remained the same was that marijuana was considered an illegal drug in the United States – until recent years. As some states have relaxed their positions on marijuana possession and usage, federal law still considers the substance illegal. The details are confusing to say the least, but today, in some states, individuals are permitted to use marijuana, both medicinally and recreationally.
So what does this mean for employers? Though many business owners might agree that what employees do on their own time is their own business, they likely don't want employees coming into work under the influence of any substance. Allowing impaired employees to operate in the workplace could open the door to a variety of new risk exposures not only for the employee, but to the business itself – and for the purposes of this article, a hotel and its guests.
Think about it: with laws varying from state to state, human resources departments at hotel brands operating in multiple states will have different rules and guidelines on drug testing in different states, and they may not be in line with federal policy.
In addition, employees and employers may be confused about the legality of different types of marijuana. For example, what are the rules around CBD (cannabidiol) vs. THC (tetrahydrocannabinol)? CBD, which has nonpsychoative components, seems to be available everywhere now in a variety of forms like lotions, teas and supplements. The THC in marijuana is what produces the psychoactive effects. Are either forms acceptable in the workplace?
To complicate things further, hemp, which is derived from cannabis but has a different chemical make-up than marijuana, is legal in all 50 states.
As of the end of 2019, 11 states had legalized marijuana for both recreational and medical use according to Governing : Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington. Moreover, a recent Gallup poll found that more than 65 percent of Americans favor legalizing cannabis use, so we could see more states embracing marijuana in the near future.
With 11 states allowing recreational marijuana use and another 19 allowing the usage of medicinal marijuana, and all of it being illegal at the federal level, hotel owners are likely to have many questions. For those who operate in multiple states, the matter becomes even more complicated.
Marijuana Usage and Impairment
An important question to consider is how marijuana laws affect employers with a zero-tolerance drug policy and those with specific or no policies regarding cannabis use. For industries where federal law supersedes state laws, such as the transportation industry, companies must follow the U.S. Department of Transportation's Drug and Alcohol testing regulation. These regulations also impact companies with federal grants or those that contract with federal agencies. Notably, these rules do not allow medical marijuana, even though CBD extracted from hemp is no longer considered a controlled substance.
As a result, some employers, including those in the hotel space, have asked whether it is time to reconsider current drug testing policies and focus on measuring a person's impairment on the job. A report by the National Institute on Drug Abuse found that industrial accidents increase by 55 percent for employees that use or are under the influence of marijuana. Employees using marijuana on the job are 85 percent more likely to suffer a job-related injury. Employee absenteeism also increases by 75 percent.
When considering marijuana usage and impairment, it's important to keep in mind two other facts:
- An employee who tests positive for marijuana is not necessarily under the influence or impaired by the drug, as marijuana stays in the system for up to 30 days.
- Marijuana use may increase the risk of a heart attack, high blood pressure and higher pulse that may lead to anxiety.
State Law and Drug Policies
As mentioned above, while federal law states marijuana is illegal, it is legal in 11 states, and legislation varies on a state-by-state basis. These differences have made it extremely challenging for hotels and other employers to establish drug policies, which very well could be challenged in the court system.
If there were any state that would test the court system on this, it would likely be California, which is why employers in that state have hesitated to institute drug policies. In fact, pre-employment testing has greatly decreased in recent years due to the threat of litigation. According to the California Chamber of Commerce, an employer can only randomly test an employee "under narrowly defined circumstances." A suspicionless drug test is only permitted after an employee is tendered an offer but before they start working.
One potential solution for employers that could work for some hoteliers is to establish clear guidelines for employees that state they are expected to work completely unimpaired. There are still avenues for termination if a staff member is impaired or becomes impaired at work, and by setting clear expectations, executing employment policies becomes much easier.
In June 2019, Nevada passed a rule that limits employers from rejecting job applicants for marijuana usage. The New York City Council also passed a rule against testing applicants for marijuana outside the public safety sector. In other states, turning away potential applicants based on failed marijuana tests has been completely barred.
There are currently 11 states in the country which have a nondiscrimination requirement for medical marijuana. This has the potential to raise legal issues, such as wrongful termination or invasion of privacy, among others. Suits involving these claims can be extremely costly in terms of dollars, as well as in terms of reputational damage for a hotel brand. On the bright side for employers, recent case law has mostly ruled in the favor of employers in cases where employees have been under the influence and in an accident and were denied workers' compensation claims.
Unlike cases involving alcohol, where liability issues are much clearer and more defined, legislation for marijuana is still fairly ambiguous at the moment. However, there are clarifying rules and regulations under development that will make it easier for hotels and other employers to navigate.
Best Practice Drug Policies
As drug laws and policies continue to evolve, it is very important for hotels to both stay up to date on these changing rules and ensure that employees are aware of company policy throughout their tenure with the company.
- During the hiring process, make sure to lay out rules and expectations regarding marijuana.
- Make sure employees understand the company's marijuana-use policy and what noncompliance could mean, including repercussions for failed tests, whether they are random, post-accident or reasonable suspicion tests.
- Provide access to support for employees with drug problems. This support could include a formal assistance program or a referral to a local resource.
- Instruct managers and team members on how to identify impaired individuals, as well as how to enforce company policy.
- Just as you would not tolerate alcohol use on the job, do not tolerate marijuana use.
Further, SHRM and the National Safety Council offer these best practices for crafting a drug policy:
- Proceed with caution in terms of testing and watch for developments in testing technology.
- Consult with a lawyer, before setting company policies and testing rules to be sure you are in compliance with state laws. After consultation with a lawyer, certain provisions which may be beneficial include:
- Clearly defined use, as well as specific possession restrictions.
- Rules for testing after accidents.
- Rules for the company's handling of an employee's arrest or legal issues.
- When operating in multiple states, understand state policies and implement testing policies that are approved in each state.
When considering company marijuana policies, a hotel owner should also carefully consider the political leanings of their state. A more liberal state may favor employee rights while a more conservative one may lean toward the employer. To that end, it's important to have legal guidance and keep an eye on recent state court rulings and positions.
Creating drug policies is very difficult today, as there is no formal testing for marijuana impairment use. But while there may not be a perfect solution at the moment, hotel owners and operators, as well as other employers, should strongly consider seeking legal counsel when forming their drug policies. With all the ambiguity surrounding this topic at the moment, legal counsel can keep hotels safe from potential harm when forming their in-house policies.
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