10 Ways to Ensure Employee Policies are in Compliance with Alcohol and Marijuana Laws

Employers have, and will always, need to deal with workers who are abusing alcohol or marijuana.  Per a study by the National Council on Alcoholism and Drug Dependence, one in every 12 adults will suffer from alcohol abuse or dependence.  With the problems of the pandemic, drug and alcohol abuse is only likely to have risen this year, particularly during the cold winter months when seasonal depression is a problem for many.  The matter is also complicated by the blurred lines of remote work: when is a drink or marijuana usage “on the clock” or just in their own living room?  The last complicating factor is the increase in new laws (differing from state to state) surrounding recreational and medicinal marijuana usage– including laws that prohibit discrimination on the job or in hiring processes from qualified medical-marijuana users.  The employee policies that used to be in the staff manual might now run afoul of state laws.  MP’s HR services offers 10 tips for ensuring compliance when it comes to alcohol and drugs.   

1. Never make accusations or assumptions.  A manager may never know why workers appear to be inebriated or hungover.  They may have a medical condition, are experiencing side effects from a medication (including medical marijuana, which is legalized in many states), or simply be having an off day.  Never make a diagnosis or punish a worker based on an assumption.    
    

2. Approach the worker with specific concerns.  Gently and unemotionally have a private conversation with the worker.  Prior to the conversation, document behavior and issues.  Then, during the meeting, share the particular behaviors and concerns (i.e., changes in behavior, swaying, slurring their words, etc.).  Finish by asking the worker what’s going on.  The ideal employer will also ask what they can do to help if there is an opportunity to do so.  Making staff feel supported will result in a better and faster resolution of the situation (rather than making them feel defensive).   
    

3. Include HR or a witness in conversations with employees.  To protect the company from accusations of discrimination, abuse, harassment, etc., it’s best to include a member of the HR department or some other neutral, discreet party.  
    

4. Do not request a breathalyzer or drug test unless there is a reasonable cause.  A manager should observe a handful of concerning factors, including slurred speech, an odor of alcohol, impaired mobility, seeing or finding empty bottles or drug paraphernalia, etc.  Consider asking for a test when it feels absolutely necessary, such as if the worker’s safety or others’ safety will be compromised. It could also mean a complaint, a lawsuit, or a bad review on a site like Glassdoor. These are all terrible risks to take without enough evidence.  (Note that if a worker does appear inebriated, coordinate safe transportation for them to a testing center or their home.)    
    

5. Check state, federal, and local laws.  Many states differ in employment law, as well as marijuana use laws.  Multi-state employers should keep this in mind and build company policy for employees based on where they work.  Understand what an employer in your industry and location must do to be in compliance in their employee policies– and what rights the worker has.  Don’t make assumptions. HR consulting companies like MP can also be helpful in circumstances like this, as they are up to date on the nuances of the various applicable laws and regulations.  
    

6. Don’t terminate immediately.  For one thing, it may be illegal based on applicable laws and regulation.  For another, it may not be necessary.  If the worker is ready to get help for their problem, they may just need to take time to tread their addictions, find new coping mechanisms, etc.  Especially if a worker has an excellent record of service, it’s important to keep in mind their value.   
    

7. Remember the ADA.  Alcoholism is covered under the ADA, as are many conditions that might require the use of medical marijuana.  It’s in the employer’s best interest to try to engage in the interactive process with the employee.     
    

8. Update and share employee policies for marijuana, alcohol, and other drug use.  It may help to work with a company like MP and their HR consulting team for this project.  Ensure these policies are in compliance with all local, state, and federal legislation.  Multi-state employers may need to create different policies for different branches/offices because some states handle these topics in conflicting ways.  If workers have recently signed an acknowledgement of the company handbook, workplaces could just ask for a signed acknowledgement of these particular employee policies.  
    

9. Update hiring practices for compliance.  Many states are passing laws that ban employers for using drug tests during the hiring process.  Don’t forget to check state and local laws to make sure the employee policies surrounding the hiring process doesn’t run afoul of them.  
    

10. Re-examine how off-duty use of drugs and alcohol are handled.  Some states have laws that were created to protect workers who used tobacco products from discrimination.  These are being used now to protect workers who use lawful drugs, like marijuana or alcohol, in their off-duty time.  Employers should seriously consider dropping concerns with use of these substances outside of work.  If an employee is completing their job duties without issues, or with minor or temporary issues, off-duty use often just isn’t relevant to an employer’s concerns.  (Of course, this doesn’t mean workplaces should tolerate inebriation or intoxication on the job, especially when it seriously impairs function, performance, and safety.)