Will your staff’s vacation plans cost you millions in a wrongful term case?

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Have you noticed that a lot more of your staff are planning vacations to Colorado and Washington this year?  Well, don’t be surprised.  On November 6th, 2012, these two states became very attractive vacation destinations for one simple reason –   there’s a big cloud forming over these two states and it smells strangely like marijuana.wrongful term marijuana

First Medical Marijuana, Now Recreational Marijuana

If medical marijuana wasn’t difficult enough to deal with in the workplace, especially in schools where tobacco is prohibited, recreational marijuana is going to put all of your HR department in a purple haze.  Employers in Washington and Colorado are concerned about how this new law affects their HR policies and rightfully so.  But what hasn’t been talked about is the rest of America’s employers who have to deal with employees coming back from their 2 week vacation where they legally drank and smoked themselves silly.

Should Drug Testing Policies Change

Here’s the catch, the law states that employers don’t have to change their employment policies in regard to the recreational use.  What they are really saying is that employers don’t have to change their policies for employees who are under the influence of drugs or alcohol while at the workplace or while on duty.  But marijuana burns a hole in that policy.

See marijuana, once smoked or ingested, remains present in the body for up to 30 days in most cases when tested using urinalysis.  I know  this first hand because I worked for the Drug Use Forecasting project where we drug tested inmates using urinalysis.  However, that residual marijuana is not really causing someone to be “under the influence”.  And this is where the law will be tested over the next few years.

An example – a worker comes back from Colorado where he smoked marijuana.  17 days later he has a work comp injury.  He arrives at the doctor’s office, takes the drug test and fails the urinalysis.  The HR department takes action and terminates his employment based on violation of company rules.  The employee then sues for wrongful termination because he hadn’t used marijuana since his trip and the test is positive due to residual traces found in the body.  What happens?  The courts will need to decide, but I am certain that most of us would settle a case like that.

What’s Next?

That’s a great question and one we need to find answers too quickly.  Right now, HR staff should review pre-employment and post-injury drug testing policies; consider offering reasonable suspicion training; and review discrimination policies.  You certainly don’t want a flood of drug testing to ensue employees who vacation in these states.

The Last Question – New Hire Drug Testing and Wrongful Term

Something that hasn’t been talked about and should really be considered is how employers will handle post-offer, pre-employment drug screening for residents who lived in Colorado or Washington and are transferring to a state that doesn’t allow recreational marijuana use.


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