With marijuana now legalized for medical or recreational use in several states, what is a pest management company’s responsibility to its customers and employees?
It’s high time we discuss drugs and the workplace. We’re not talking about employees getting high on-the-clock — that’s a cut-and-dried call often handled with immediate discipline and even termination. Rather, let’s follow an adventure of Bill and Ted.
For the purposes of this story, Bill and Ted are two of your best general pest control technicians. They work hard and have proven to be loyal employees, each having been hired about three years ago. On a recent Saturday night, Bill and Ted went to a party thrown by a mutual friend. Bill went a little overboard on the beers and shots, and had a king-sized hangover on Sunday. He kept hydrated and took it easy Sunday, and was ready for work on Monday morning.
Ted had a beer or two at the party, but then went off with some other guests to share a bong. Unlike Bill, he didn’t feel poorly Sunday morning. The effects of the marijuana had worn off, and by Monday, Ted, too, was ready for work.
If you were to give your employees a random drug test on Monday, Bill would pass and Ted would fail. Because Ted smokes marijuana fairly regularly — even though he has never come to work impaired from its effects — his use from last Saturday’s party has the ability to keep marijuana’s Delta-9-tetrahydrocannabinol (THC) levels in his system for up to 30 days or more. He could still fail your urinalysis test a month from now.
First off, recommends Dr. Sandy Seay, knock it off with the random drug tests. Dr. Seay, owner of Orlando, Fla.-based Seay Management Consultants, and his team offer human resources consultant services through the National Pest Management Association (NPMA). He says Ted’s situation is not an uncommon one in the industry these days, and it makes sense for business owners to be prepared with how to deal with it.
“Employers absolutely have the right to require drug tests,” says Dr. Seay, who stresses he makes recommendations solely from a management, not a legal, perspective. “Drug screen one person, the whole department, or the whole company on a regular basis. But to do so at random can get you into the deep weeds.”
Rather, he advises, if you want to have a drug-free workplace, make it known from the onset. Post a related sign in your break rooms, and mention your drug-free policy in help wanted ads.
“First, it’s a bit of a deterrent for them. You’re communicating they’re subject to a drug screen at any time, so right away they know whether they might be the right fit for your company,” Dr. Seay says. “Second, each state has its own standards for what constitutes a ‘drug-free workplace program.’ If you meet those standards, you can get about a 5-percent reduction on your workers’ compensation program rates. That goes right to the bottom line.”
Whenever a workers’ compensation injury occurs, Dr. Seay notes, a mandatory drug screen is performed on the employee. If he or she fails, workers’ comp benefits will be denied.
Greg Crosslin, an attorney with Crosslin & Associates in Destin, Fla., specializes in issues related to the pest management industry. He notes that today’s legal liability is tied to state boundary lines. But even in places where marijuana is legalized, there can still be problems.
“If you don’t have an anti-drug policy and you’re in Denver, and one of your techs runs a red light and T-bones a car because he’s high — you better have insurance,” Crosslin says. “Just because Colorado decriminalized it doesn’t make it OK to do at work. On the other hand, we had Prohibition, and people still drank and drove.”
Of course, if you suspect someone is high at work, whether it’s his or her behavior or evidence in a company vehicle, for example, you can require the employee to take a drug screen. If he or she refuses, you can discipline, and even dismiss, the employee. The same goes for a failed drug test. Dr. Seay says it’s a good idea to include an explanation of this process in the policy handbook, and to follow it to the letter every time.
Crosslin agrees that diligence is key. “Keep enforcing the policy. I think we’re going to see a change in attitude pretty quickly, at different levels,” he adds, noting that the Trump administration has taken a markedly different attitude toward marijuana than the Obama administration. Attorney General Jeff Sessions stated on the record that he is not in favor of legalizing marijuana at the federal level. (Editor’s Note: See “Marijuana regulations from a federal point of view” for more details.)
“Jeff is a colleague of mine, I’ve known him since the late 1980s, and this could be Trump’s new war on drugs,” Crosslin says. “On the other hand, there is evidence in states where it is legalized where more than $250 million is collected in taxes on marijuana. California is poised to collect up to $1 billion in taxes. I’m not sure which way the pendulum is going to swing.”
While recreational use might come under fire in the coming months, there’s also the matter of heavy use and addiction.
“Some owners wonder whether you have to send the person to rehab. You don’t. You also don’t need to fire them, you can just write them up,” Dr. Seay says.
Still, drug addiction — as opposed to abuse — is a protected category under the Americans with Disabilities Act (ADA).
“We need to focus on the behavior, not the addiction,” Dr. Seay says. “I cannot fire you because you’re an addict. I can fire you because you came to work under the influence and thus cannot perform your work duties to expectations.”
Dr. Seay points out that most of the time, the drug screen failures are from recreational use, not an addiction. Either way, pest management companies need to protect themselves.
“If an employee is under the influence of a drug or alcohol and there’s an accident, there’s a liability,” Dr. Seay says.
Recreational use is not a protected class, Crosslin says. “For at-will states, you can fire someone for any reason. For states that do not have at-will employment, you must spell it out in your employee manual. If your manual says zero tolerance for alcohol and driving, or any controlled and/or illegal substance and driving, there are your grounds for dismissal.”
What if an employee has a prescription for medical marijuana, which happens to be legal in your state? Dr. Seay says it’s one thing for an employee to use marijuana on his or her own time — and quite another to be under the influence of it while at work.
Crosslin and Dr. Seay both suggest that if an employee discloses having a prescription for medical marijuana, draft a memo stating when it was disclosed, and keep it in his or her personnel file. Don’t make a copy of the prescription directly, Dr. Seay advises, because that could be a privacy invasion issue in the eyes of the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPPA).
Crosslin recommends checking with your state authorities on what you can and cannot ask about prescription medication. Check all states in which you do business.
“If you’re based in Pensacola, Florida, for example, know that Alabama is less progressive on medical marijuana than Florida is. You have to be diligent and don’t let the tail wag the dog,” Crosslin adds. “Make it known throughout your company that medical marijuana use is going to be the exception, not the rule.”
If you want your workplace to be known as drug-free, Dr. Seay says you need to be as upfront about it as possible.
“It is certainly permissible to ask during an employee interview, ‘Do you use illegal drugs?’” he says. “It’s just part of your due diligence. If they don’t tell you the truth and a problem arises — the authorities might question, ‘Why didn’t you ask about drugs in the interview?’ You can say with confidence ‘We did ask.’
“Sometimes [candidates] say, ‘Yes I do, but only on the weekends,’” Dr. Seay continues. If that’s their response, he says, it’s up to you to decide whether you want to pursue them further as a serious candidate.
Crosslin says if the applicant uses marijuana medically, consider the condition for which it’s being used.
“Will it affect the way he works? How will it affect his wearing a mask, or working with active ingredients?” Crosslin asks.
Crosslin says pest management employers should be more concerned about practical applications, such as the increased risk an impaired employee has for improperly calibrating a tank mix.
“It’s not something you want to see in litigation, and it will increase your workers’ comp rates — undoing years of what we’ve spent fighting to get a handle on,” he says.
Protection only goes so far
Truth be told, Pest Management Professional (PMP) began investigating this topic after a PMP in California asked us to look into it based on his experience. A prospective employee called about a job opening and asked point-blank whether the company hired employees who used marijuana. The owner was concerned that the call could lead to attorneys jumping aboard the employee discrimination bandwagon. For the record, the owner invited the caller to come in for an interview regardless, but he failed to show up for the appointment.
Could you be liable for discrimination if you make it clear your workplace is drug-free? The answer is complicated.
“America has more employment regulations than any other country in the world,” Dr. Seay says.
“Any employee at any time can file a complaint. The employer would then have to defend it. The playing field tends to be tilted away from the employer and toward the employee. That being said, someone could file a lawsuit and charge discrimination. He or she probably will not win, but you could end up spending money just defending yourself.”
To protect yourself from possible litigation, Dr. Seay recommends employee liability insurance with a deductible of $25,000 to $50,000.
“This way, if you’re facing a lawsuit, you’re at least covered under the deductible,” he explains. “As insurance programs go, it’s usually not very expensive.”
In addition, Crosslin advises, make a formal, written request to your state regulatory agency, asking for the state’s guidance on marijuana use. If you are not comfortable doing it on your own, he suggests asking your state association to write a letter on all members’ behalf. The letter should be as simple as, “Dear Commissioner _____, what are your recommendations and guidance on employees using marijuana on or off the job, and how do we respond?”
When you receive a response, add the letter to your employment file.
“If a regulator says [marijuana use] is OK, that document is admissible in court,” he says.
- Legalization means marijuana is taxed and regulated. Decriminalization merely removes the criminal, prosecution and monetary penalties of possession and/or use.
- As of 2014, 13 percent of nighttime and weekend drivers have marijuana in their system; this is up from 9 percent in 2007.
Source: U.S. Centers for Disease Control and Prevention
- In 2015, marijuana use was most prevalent among people aged 18 to 25, with 19.8 percent using it in the past 30 days.
Source: Substance Abuse and Mental Health Services Administration
- The number of self-reported marijuana users is increasing. In 2014, there were 7,000 new users of marijuana per day.
Source: U.S. Centers for Disease Control and Prevention
- Marijuana has become more commonplace: According to NORML.org (whose acronym stands for National Organization for the Reform of Marijuana Laws), “marijuana is the third-most popular recreational drug in America, behind only alcohol and tobacco, and has been used by nearly 100 million Americans. According to government surveys, some 25 million Americans have smoked marijuana in the past year, and more than 14 million do so regularly despite … laws against its use.”
- Marijuana use in the previous 30 days increased from 6.2 percent in 2002 to 8.3 percent (approximately 22.2 million people) in 2015 among people aged 12 or older.
Source: Substance Abuse and Mental Health Services Administration
THC urine tests
- Someone who has smoked for the first time can test positive for Delta-9-Tetrahydrocannabinol (THC), the active ingredient in marijuana, for up to eight days in urine.
- Someone who smokes marijuana frequently can test positive for THC for up to 15 days in urine.
- Someone who smokes marijuana heavily can test positive for THC for up to 30 days in urine.
- Some heavy marijuana smokers have tested positive for up to 45 to 90 days in urine after stopping smoking cannabis.
Sample drug-free workplace policy
According to DrugFreeWorkplace.org, “an effective company substance-abuse prevention policy — especially suitable for small businesses — can be as simple as five sentences,” as follows:
- [Company] is committed to protecting the safety, health, and well-being of its employees and all people who come into contact with its workplace(s) and property, and/or use its products and services.
- Recognizing that drug and alcohol abuse pose a direct and significant threat to this goal, [Company] is committed to ensuring a substance-free working environment for all of its employees.
- [Company] therefore strictly prohibits the illicit use, possession, sale, conveyance, distribution, or manufacture of illegal drugs, intoxicants, or controlled substances in any amount or in any manner.
- In addition, [Company] strictly prohibits the abuse of alcohol or prescription drugs.
- Any violation of this policy will result in adverse employment action up to and including dismissal and referral for criminal prosecution.
Being drug-free in an approved state
Sprague Pest Solutions is based in Tacoma, Wash., and serves Idaho, Utah, Washington, Oregon and Colorado. Marijuana is legal in those last three states, and Sprague even counts dispensaries and pot farms among its clients. The company, however, defines itself as a drug-free workplace. We caught up with Sprague’s human resources director, Leila Haas, about how marijuana use affects the company’s hiring and employment processes.
PMP: How does Sprague communicate its drug-free workplace to applicants?
Haas: We administer an online work test, and we ask outright about drug use. While there are an increasing number of upfront candidates who say yes, this sifts them out. We don’t want to waste their time. We will not hire them, because our job descriptions clearly outline the physical requirements necessary to work for us. We look at it as, marijuana use would interfere with the essential job functions.
PMP: Is your drug-free workplace status something you market to customers?
Haas: Definitely. Many of our clients require verification of background and drug-free status because of the safety aspect. It’s also something a lot of vendors require as well.
PMP: What is Sprague’s stance on medical marijuana?
Haas: Medical marijuana is not acceptable for our employees. Unlike alcohol, testing for marijuana hasn’t caught up with [the timing of when it was ingested], and there’s no ability to know the difference. To us, that’s a safety issue.
If the testing were changed, we’d better understand the window when the employee partook. But as of now, there are no guarantees. Therefore, we maintain the opinion that marijuana is just not an option for our employees.
Marijuana regulations from a federal point of view
On March 15, 2017, at the U.S. Justice Department’s headquarters in Richmond, Va., U.S. Attorney General Jeff Sessions delivered public remarks on efforts to “Combat Violent Crime and Restore Public Safety” before law enforcement representatives of local, state and federal levels.
In Sessions’ prepared remarks, which can be read in their entirety online, he focused on the nationwide epidemic of heroin and opioid abuse. He also quoted FBI data that states, “from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent, the largest one-year increase since 1991. The murder rate increased 10 percent, the largest increase since 1968.” Linking the rise in crime directly to transnational drug cartels, Sessions listed the three main ways to fight the scourge of drugs in the U.S.: criminal enforcement, treatment programs and drug prevention.
Of the third concept, he went on to say:
I realize this may be an unfashionable belief in a time of growing tolerance of drug use. But too many lives are at stake to worry about being fashionable. I reject the idea that America will be a better place if marijuana is sold in every corner store. And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.
In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction. We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.
A swift rebuttal
Naturally, social media and traditional media alike almost immediately picked up on Sessions’ characterization of marijuana use being “only slightly less awful” than the use of opioids or heroin. What also caught attention was his response to a reporter’s follow-up question: “I think medical marijuana has been hyped, maybe too much.”
From jokes that found their way onto late-night TV shows to outrage on social media, one tweet in particular from Sessions’ home state of Alabama garnered attention. It was from Amy Young, whose daughter, Leni, suffered a massive stroke at just 34 days old. One of the complications from the stroke is seizures, and Leni was found to respond well to cannabidiol treatment. She was thus “the inspiration for the law passed last year decriminalizing cannabidiol in Alabama,” known as Leni’s Law, according to Alabama news site AL.com.
“@aldotcom Leni is alive thanks to her mmj treatment, not hype. Fact #lenislaw,” tweeted Young.
Enforcement remains by state
Sessions did praise the guidance the Obama administration put forth in 2013. Known as the Cole Memorandum, it “set up some policies under President Obama’s Department of Justice about how cases should be selected in those states and what would be appropriate for federal prosecution, much of which I think is valid,” Sessions said during the press conference.
According to MassRoots.com — a pro-marijuana site — “Sessions added that he ‘may have some different ideas myself in addition to that,’ but indicated that the federal government would not be able to enforce its remaining marijuana prohibition laws across the board in states with legalization: ‘Essentially, we’re not able to go into a state and pick up the work that the police and sheriffs have been doing for decades,’ he said.”
The bottom line
Marijuana legalization continues to evolve and may differ in various states months from now. As the debate rages on, both in the court of public opinion and in different jurisdictions, it will be interesting to see whether the case weakens or strengthens