7/31/2023 0 Comments High on the job![]() ![]() Make a note alongside their job application about the strong smell or signs of impairment, and send them an email informing them that they were not selected for the position. Then, tell them you are still interviewing so will get back to them. You can also give them a short but professional interview. We’ve decided to move on to the next candidate, but thank you for coming in.” If I noticed it, my employees and patients will too, so this isn’t going to work. “I am not sure if you are aware, but you have a strong odor about you. So, in the case of a prospect who shows up to an interview with a strong weed smell, this is a safe bet: In the case of marijuana, don’t say, “I don’t want to work with a pothead.” Instead, focus on the smell itself, “I need you to not smell like marijuana, or any strong odors when you come to work.” ![]() However, foul odors, be they cigarettes, poor hygiene, pet odors or even perfumes and cologne, have a direct effect on your workplace and are not legally protected. In that article, we pointed out that employers don’t have much control over legal, off-duty activities that take place away from their property. We’ve previously written guidance to help employers with workers who smelled strongly of cigarette smoke. While you can’t necessarily take action against someone simply because you know they use marijuana outside of work hours, you can ensure that this off-the-clock activity doesn’t impact your office. So, if you rely solely on a positive marijuana drug test for disciplinary action, you could be punishing an employee for legal off-duty conduct. While blood-alcohol and controlled substance testing can determine whether alcohol is present in the employee’s system when the test takes place, current marijuana testing can only determine that a person has used marijuana in the last couple of weeks and not much more. The reasoning behind this type of protection is that there is no reliable medical test that indicates whether a person is under the influence of marijuana at a particular moment. In effect, this means that in addition to a positive drug test, you would need to show that the employee was in possession of cannabis at the workplace or impaired on the job (see below) to discipline them. Some states go a step further to say that employers cannot take any adverse action against an applicant or employee solely due to the presence of marijuana on a drug test. In other words, simply knowing that an employee uses cannabis products cannot be the basis for disciplinary action or any employment decision. ![]() These protections typically say that an employer cannot take any adverse action against an employee or applicant because they are a registered medical marijuana cardholder or they use cannabis products. So, what can you do? We at CEDR cut through the “fog” and help you navigate what to do if you suspect an employee is, as our Aunt Sharon would say, “high on the pot.”Īs we mentioned, many of the states where medical or recreational marijuana use is legal have created protections for workers who legally use these products when they are off duty. This means that employers should think twice before using off-duty, suspected or known use of marijuana or any legal medically prescribed substance as the sole reason for taking adverse action against an employee or a job candidate. To further complicate matters, some states put specific job protections in the language of their marijuana legalization laws. The distinction between medical use and recreational use clouds the issue even more for managers and employees. Nonetheless, 36 states have legalized medical marijuana use, and recreational marijuana use is legal in 17 of those states. While many states have moved to legalize or decriminalize its use, marijuana is still an illegal Schedule I drug under federal law. From job candidates showing up to interviews smelling like a skunk to employees showing up to their shift distracted with bloodshot eyes, knowing how to handle an employee’s potential marijuana use has only gotten more complicated.Ĭurrently, marijuana legalization is in limbo between State versus Federal Government. In this article, we are going to discuss impairment and odors from the perspective of marijuana legalization. When that happens, we immediately go into crisis control mode because, well, impairment at work is never acceptable. More often than you would think, we get calls from members wondering what they can do about someone who they think is impaired at work. ![]()
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