Unless you’ve been under a rock for the past couple of weeks, you’ve probably heard about Toronto’s crack-smoking mayor, Rob Ford. No, I don’t mean that term in the figurative sense or as a commentary on some outlandish political policy he has chosen to pursue. I mean it quite literally, as Rob Ford admitted in a November 5 press conference to smoking crack cocaine while in one of his “drunken stupors.” (I’m not kidding. Those are his words.) And while we Americans all know Canadian beer is like moonshine, that’s hardly an excuse for an elected official choosing to dance with the devil—even one as offensive and scandal-ridden as Ford, who some have labeled as “Mayor McCrack.”
Sadly, Toronto is not the first major city to go through such a scandal. Most of us remember the time when Marion Barry, then mayor of our nation’s own Capital, was caught on tape himself smoking crack. Barry, of course, was arrested and served six months in prison, only to be re-elected mayor four years later. So maybe there’s still hope for Ford. And if you’ve read much of what he’s been quoted as saying, you might think a little time out of the spotlight would do him some good.
Aside from making the jobs of late-night talk show hosts extremely easy over the past couple weeks, Ford’s admission has supplied this blogger with the necessary segue to highlight an important employment law topic: drugs in the workplace.
A recent study by the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration shows drug abuse is still a major issue for employers. The study found that most illicit drug users in the United States are employed. In fact, the study revealed “of the 21.5 million current illicit drug users aged 18 or older in 2012, 14.6 million (67.9 percent) were employed either full- or part-time.” That’s a lot of current drug users inhabiting your workplace. Especially when drug use can result in lower productivity and lower quality work, increased absenteeism, and greater risk of on-the-job injuries. All of these things can negatively affect your company’s bottom line.
What employers can do
Employers aren’t powerless to combat drugs in the workplace. Drug- free workplace programs can be powerful tools in spreading prevention messages and intervening early with those who have already begun to use drugs. For many individuals, especially those who may deny that their use of drugs is problematic, workplace-based programs can be a critical step along the road to treatment and recovery. Every workforce is different and drug-free workplace programs should be tailored to match a company’s individual needs. Effective drug-free workplace programs generally include five elements:
- A written policy that provides a clear description of prohibited behaviors, as well as an explanation of the consequences for violating the policy.
- Supervisor training to ensure managers understand the policy and know how to recognize potential substance abuse issues as well as how to refer employees to professional help.
- Employee education programs that provide information on company policy, how to comply with the policy, the consequences of violations, and general information on the dangers of substance abuse.
- Employee assistance programs that help prevent, identify, and resolve issues relating to substance abuse, including counseling and referral to professional help, which can be an alternative to dismissal.
- Drug testing that deters and detects drug use and provides concrete evidence for intervention.
Due to the variance of state and local laws concerning employee drug testing, it’s critical that any decision to implement employee drug testing be reviewed to ensure that it is compliant with the laws of your jurisdiction. Many states encourage drug-free workplaces by offering protection from civil liability or a reduction in workers’ compensation premiums for employers that adopt compliant drug-testing policies and procedures. Other states prohibit employee drug testing or limit the manner and circumstances for which drug testing may be performed.
Check your state law
But wait. There’s more! To date, at least 20 states plus the District of Columbia allow their citizens to use marijuana for medical purposes. Two of those states–Colorado, and Washington–recently passed measures legalizing recreational use. While the provisions of state medical marijuana laws vary, generally state courts called upon to determine the extent of an employer’s obligation to accommodate employees using marijuana under the medical use laws have found no such obligation either express or implied. Some state laws, however, provide more protection for employees. For example, the laws in Rhode Island and Maine prohibit employers from penalizing an individual merely because of the person’s status as a medical marijuana user.
Arizona’s law goes even further, prohibiting discrimination against a registered qualifying patient based on that person’s positive test for marijuana unless the patient was impaired by marijuana on the employer’s premises or during the hours of employment. While the law doesn’t require an employer to permit an employee to ingest marijuana at work or to work while under the influence of marijuana, it also states that a registered qualifying patient is not considered to be under the influence of marijuana solely because that person tests positive for marijuana metabolites in an amount that is insufficient to cause impairment.
Because of the various approaches applied by the several states and the ever-developing nature of this area of the law, it’s important that you seek help from an experienced professional when developing and implementing a drug-testing policy.