Tire dealers are challenged with recruiting and retaining staff from an ever-shrinking pool of qualified candidates.
They also are challenged with ensuring a safe work environment, which is heavily regulated by Occupational Safety and Health Administration (OSHA) federal and state regulations.
Employees expect to work in a safe environment. Tire dealers want to ensure that their employees provide the highest quality of service. They also want to ensure that their customers’ vehicles are not damaged while being serviced and that staff can test drive the customer’s vehicle in a safe manner on roads and highways.
As if operating a profitable business isn’t hard enough, tire dealers must now manage the legalization of medical and recreational marijuana. Thirty-eight states and the District of Columbia have legalized the use of medical marijuana. Additionally, 22 states and the District of Columbia have legalized the use of recreational marijuana.
Marijuana remains illegal under federal law. But it is apparent that Congress does not want to weigh in on federal regulations regarding marijuana. They prefer that states regulate the use of marijuana, which continues to confuse employers, employees and consumers.
However, there is light on the other side of the smoke. With the right tools and policies, you can successfully navigate the challenges that the legalization of marijuana creates.
UNDERSTANDING LEGALIZATION
To help you understand your rights as an employer, as well as state regulations, we have provided the following definitions and summary of regulations.
Medical marijuana is available only by prescription from a licensed medical professional and is used to treat a variety of medical conditions such as pain, anxiety, nausea, glaucoma, etc.
If you operate in a state where medical marijuana is legal, you are required to consider accommodation for registered marijuana users. Policy, however, should dictate the need of an employee to be fit for duty.
Policy should require that job applicants and employees communicate to you they have any prescription to include medical marijuana.
We suggest a fit-for-duty exam be performed by the employee’s medical provider to determine if the employee can perform the essential functions of the job in a safe and productive manner. If accommodations are requested by the medical provider, then you must determine if you can reasonably accommodate those accommodations.
No state law gives any employee the right to use, possess or be impaired by marijuana on work premises or during working hours of employment. If there is reasonable suspicion to believe an employee is impaired and such individual tests positive for marijuana, adverse action may occur. In addition, a positive result for marijuana can result in adverse action if testing is required by federal or state law, you receive federal funding or an employee works in a safety-sensitive position.
In essence, you should treat medical marijuana as any other prescription medication. If a medical marijuana card is presented during the application phase or during employment, it is recommended that you ensure the employee is fit for duty by requesting the employee share with his or her medical provider the essential functions of the job. This includes physical and mental requirements. Then the medical provider will let you know whether the employee can perform essential functions with or without accommodation.
This is no different than an employee having a prescription for traditional medication that would prevent that person from performing a job in a safe manner. Just because a job applicant or an employee has a medical marijuana prescription does not mean that they are fit for duty. It behooves you to ensure that employees are, in fact, fit for duty and capable of performing their jobs in a safe manner.
Also remember that you cannot summarily not hire or separate the employee simply for having a prescription for marijuana.
Recreational marijuana simply means marijuana that is grown and sold for recreational purposes to adults over the age of 21, pursuant to applicable state laws. Recreational marijuana also means that any part of the cannabis plant, living or not, is used as an intoxicant for the reason of enjoyment or pleasure.
If you operate in California, Connecticut, Missouri, Montana, Nevada, New Jersey, New York and/or Rhode Island, you must take care before taking adverse action against applicants or employees who are recreational marijuana users. These states prohibit discrimination in hiring, termination and other employment decisions simply based on an employee’s consumption of marijuana while off the job.
Employers operating in any state where marijuana is legalized for recreational purposes are expected to simply treat marijuana the same as alcohol. Neither substance is legal to be possessed or consumed on the job or during working hours. Employees who are considered under the influence and intoxicated can be removed from any job, up to and including termination. You are free to test applicants and employees and if they test positive for recreational marijuana, you are free not to hire them and you are free to take disciplinary action up to and including termination.
A majority of states have updated various regulations regarding substance abuse to include medical and recreational marijuana and what employers can and cannot do. For example, in the states of Iowa, Kansas, Louisiana, Minnesota and Vermont, employees cannot be terminated simply because they tested positive for the first time. In these states, an employee must be provided the option of seeking treatment. If the employee refuses or does not complete a designated treatment program or completes the treatment program successfully and tests positive again, then the employee can be terminated.
Most states are “mixed” states, which have legalized both medical and recreational marijuana. And as stated above, many states have even more complicated rules and regulations regarding testing and the use of drugs, including marijuana.
WHAT YOU CAN DO
At a minimum, one in eight workers actively uses recreational marijuana. Two-thirds of Americans favor making marijuana usage legal. These two facts create a real challenge for your business. So what can — and should — you do to navigate this?
First and foremost, there isn’t a one-size-fits-all solution. Policies, procedures and practices must be customized based on many factors to include state laws, your personal beliefs regarding marijuana use, safety, customer service standards and more.
The following topics must be carefully considered when establishing policies and practices to not only comply with state marijuana regulations, but also in hiring and retaining a high-quality workforce.
To test or not test? Most employers have implemented some form of substance abuse testing policy. SESCO Management Consultants has been an advocate of substance abuse testing for as long as I can remember. I would have never thought after all these years I would say to a client, “It is recommended that you challenge your substance abuse testing policy as it relates to marijuana.”
Traditional drug testing policies happen at the pre-employment stage, the post-accident stage, at random and if there is a reasonable suspicion that justifies intervention. With the legalization of marijuana, we have recommended clients challenge their random and pre-employment testing practices, unless required by a federal or state law or Department of Transportation regulations.
I’ll never forget a few years ago, when a large client called requesting that we develop a very comprehensive substance abuse program, including random testing, for his business. He told me he vowed he was going to eradicate drugs in his workplace. After the program was implemented, the owner called me 30 days later. I asked him how the first round of random tests went. He said, “We had four employees test positive.”
He went on to say that his general manager of 30 years, his right-hand man, had tested positive for cocaine. He then asked me how he could keep him while terminating the other three who had tested positive. This created a difficult situation that potentially put the business owner at legal risk.
Pre-employment testing. As a matter of background, there are various types or different panels of drug tests to choose. These range from a five-panel test, up to a 14-panel drug test. The “panel” refers to either a drug or a family of drugs included in the test. As the panel levels increase, more types of drugs are typically screened. For example, a 13-panel drug test screens for 13 of the most frequently abused prescription drugs (Xanax, Fentanyl, Ritalin, Valium, etc.) and illicit drugs (cocaine, PCP, quaaludes, etc.). The most common, least expensive test is a standard five-panel drug test which screens for five illicit drugs, including marijuana. (Sometimes screening for alcohol also is requested.) More and more employers are utilizing 10, 12 or even 13-panel tests.
We are finding that employers in many industries are not conducting pre-employment drug testing; are conducting preemployment drug testing, but are having marijuana dropped from the panel; or if the applicant tested positive for marijuana, are not considering it as part of the hiring consideration. More and more employers appear to be treating marijuana use like alcohol and ignoring off-duty recreational use.
These substance abuse testing policy changes are becoming more common because of the lack of reliable testing available to determine whether an applicant or employee is under the influence of marijuana. Unlike alcohol testing, which can clearly identify whether or not an applicant or employee is under the influence, marijuana testing provides for either a positive or a negative result.
Although research is conflicting, it is widely known that an applicant or an employee can test positive for using marijuana within the last 30 to 60 days. The challenge for employers is conducting pre-employment and random testing for marijuana use. You just don’t know when the applicant or employee used the drug. And with it being legal in most states in one form or another, testing for marijuana creates a number of “hoops” and processes that an employer must consider to avoid breaking the law.
Each employer must determine whether they wish to implement a substance abuse program to include pre-employment and random testing and/or to include marijuana. We are not recommending either/or and certainly if you do elect to conduct pre-employment and/or random testing to include marijuana, we can assist you in establishing a compliant policy. Safety and workers’ comp costs are still critical issues and a comprehensive substance abuse program can go a long way in reducing these significant costs.
Reasonable suspicion. Regardless of the legalization of medical and recreational marijuana, employers do not have to tolerate on-the-job use or intoxication. Reasonable suspicion testing is critical as employees can’t come to work impaired. Additionally, you owe it to the rest of your employees, who expect a safe place to work.
Most employers want to test based on reasonable suspicion and out of concern for the health and safety of their employees. It is ideal to train managers on ways to observe and determine whether someone might be under the influence. Please note the words “might be.” The employee does not have to be legally impaired to be tested.
If you reasonably believe that someone may be a threat to themselves or others in the workplace and they are under the influence, it is always best and safest to conduct a substance abuse test. If they are not under the influence and know they will test negative, the employee will typically cooperate. If the employee refuses the test, your policy should state they are voluntarily resigning, effective immediately. (Of course, if they test positive, you have options which should be thoroughly discussed with your HR department or a third-party advisor.)
Testing based on reasonable suspicion could be prompted by the following:
• Suspicious odors;
• Odd employee movements, such as staggering or twitching;
• Eyes that are dilated or watering; • Unusual facial expressions and a flushed complexion;
• Confusion and slurred speech;
• Irritability and argumentativeness;
• Drowsy, slow or unusual poor performance;
• Abnormal behavior for that individual.
Post-accident is another test that is strongly recommended. Most workers’ comp programs either recommend or require a workplace substance abuse program that includes a testing protocol. If an employee tests positive after an accident, this will go a long way in a complete denial of workers’ comp and as such, reducing significant employer liabilities and costs.
Most employers will implement a basic threshold of when to test post-accident. Basic papercuts and the like typically are not sent for post-accident testing. More serious accidents and/ or injuries are sent for tests. These can include back strains, cuts, dropping parts or tools on feet, back and body strains, slip and falls with subsequent pain, etc. You are better off taking an employee to be tested and/or taking them to the local emergency room or urgent care center than not.
DEVELOP EFFECTIVE SYSTEMS
In today’s litigious environment, dealerships must have effective and compliant human resource management systems to include:
• An employee handbook which, most importantly, reflects state laws;
• Job descriptions that identify the essential functions of a position, plus its physical and mental requirements in order to determine reasonable accommodations;
• A basic hiring system that includes three to five behavioral, open-ended interviewing questions, in addition to a background and reference check process;
• Safety and health policies;
• Open communications.
Dealerships are very familiar with these basic tools and systems, but many times ignore or delay their development and implementation or allow systems to go stale and out of date. You cannot be reactive, but must be proactive in developing and maintaining these systems.
Wrongful termination lawsuits and legal intimidation are on the rise, especially among younger generations. Many believe they “know” their rights and are not afraid to contact a federal or state agency or a lawyer.
However, as stated above, compliance is attainable and affordable and an organization can attract and retain excellent employees which, frankly, removes a lot of these employment liability issues. But this must be a priority.
The employer-employee relationship is ever-changing. To navigate the challenges, SESCO recommends the first step you should take is to have a competent employment and HR specialist conduct a review of at least your employee handbook, policies and procedures. You will then have the peace of mind to at least understand where you are in terms of compliance, as well as effective policies and procedures in place. Then you can establish a roadmap to address identified needs.
Bill Ford is the president and CEO of SESCO Management Consultants, the oldest human resource and employee relations consulting firm in America, with many tire dealership clients. Ford can be contacted at (423) 764-4127 or [email protected].
