Employee Termination: Rethinking Cannabis Testing Policies
Hey there, fellow cannabis enthusiasts! Today, we’re diving into a hot topic that’s been making waves in the world of employment and marijuana. It’s all about “Employee Termination” and how it’s time to reevaluate our approach to cannabis testing policies in the workplace.
Why Employee Termination Policies Need a Makeover
The Changing Landscape of Cannabis
Whether you’re a staunch advocate for marijuana or a skeptic like me, there’s no denying that the times are changing. With over 50 percent of Americans living in states where recreational marijuana is legal and a whopping 74 percent having access to medical cannabis, we’re in a new era.
Not to mention, the U.S. cannabis market is expected to surpass $30 billion in revenue in 2023. That’s a lot of green! And with state treasuries hungry for tax revenue, it’s clear that cannabis is here to stay.
The Problem with Cannabis Testing Policies
So, what’s the issue here? Well, it all boils down to how we handle cannabis testing in the workplace. Many industries, especially in transportation, are required by federal law to randomly test employees for drugs, including marijuana. A positive test can lead to employees being removed from safety-sensitive positions, followed by termination and license action.
I’ve personally handled cases of employees losing their jobs due to positive tests, and here’s the kicker – most of these cases ended up with reinstatement. Sometimes it was due to errors in specimen collection, occasionally due to flawed medical reviews, and once because a lab didn’t validate its testing method properly. Talk about a rollercoaster!
Reevaluating Cannabis Testing
The Need for a Change in Policy
It’s time for a change, my friends. The current testing methodologies don’t reflect impairment accurately. While a positive test for alcohol requires proof of current intoxication, there’s no reliable test for current marijuana impairment.
One potential solution would be to treat cannabis like alcohol and focus on current intoxication. The catch? We don’t have a dependable test for that yet. But here’s the good news – there’s a subtle shift happening. Certain decision-makers and regulators are starting to cut some slack for employees who test positive for marijuana.
Take, for instance, the case of an Alaska Airlines mechanic who claimed accidental ingestion. While there wasn’t a corroborating witness, the mechanic got reinstated because the company failed to investigate the issue properly. The modern-day legality and omnipresence of cannabis played a role in this decision.
Federal Regulations and Labor Unions
Federal regulators aren’t too keen on taking license action against individuals based on marijuana positives. In fact, federal regulation doesn’t require termination for employees testing positive; it only mandates their temporary removal from safety-sensitive duties.
Labor unions are also stepping up their game. Remember the Long Island Rail Road electrician who got terminated for a positive marijuana test during cancer treatment? Well, the union not only took the case to arbitration but also launched a federal lawsuit, citing constitutional claims and violations of New York State’s Marihuana Regulations and Taxation Act (MRTA).
A New Approach to Employee Termination
The Way Forward
It’s clear that something needs to change. Careers are getting cut short, and industries are losing valuable, safety-conscious employees for what seems like no reason at all. While a permanent fix involving regulatory reform and an impairment-specific marijuana test is on the horizon, it’s still years away.
In the meantime, employers should consider adopting the two-strike approach promoted by the Department of Transportation (DOT). This approach allows employees to return to safety-sensitive work after completing an education/treatment program prescribed by a certified Substance Abuse Professional (SAP). These programs often involve attending a few classes or watching some videos.
Conclusion
So, there you have it, folks. It’s high time we reevaluate our approach to employee termination for positive marijuana tests. With cannabis becoming more prevalent and accepted, it’s crucial that we find a fair and accurate way to determine impairment.
Let’s not forget, we’re in the midst of a changing landscape, and it’s essential to adapt our policies accordingly. While there are challenges ahead, there’s hope for a more reasonable approach to cannabis testing in the workplace.
Thanks to Lee Seham of Seham, Seham, Meltz & Petersen LLP for shedding light on this issue. It’s been a wild ride, and it’s not over yet. Stay tuned for more cannabis updates, and as always, keep it chill, my friends.
