‘Weird limbo’ for workplace and pot | Business Local

Then Chakravorty asked how many had updated them recently. Hands started going down. “That’s why I’m here,” said one audience member.

The fast-changing status of marijuana in Virginia – which last year became the first Southern state to legalize recreational smoking – has generated a slew of questions amid what has been a complex and sometimes disjointed rollout of new laws on the issue.

“We’re in this sort of weird limbo,” said Michael Gardner, an employment attorney with Woods Rogers.

Medical marijuana sales were sanctioned in the state in 2020 but recreational sales are still two years away from being lawful (although legislators continue to debate that timeframe). Employers are barred from discriminating against workers for medical use of cannabis oil, with a valid prescription, but similar protections weren’t extended to recreational use even as lawmakers voted to legalize small amounts of marijuana possession and home growing.

Employers can forbid on-the-job consumption and impairment but readily available testing technology isn’t yet sophisticated enough to determine if any THC detected was consumed two hours or two weeks ago.

And, of course, marijuana remains an illegal substance at the federal level. In other states, courts have delivered conflicting rulings on what are or aren’t reasonable policies for employers under the circumstances.

Virginia courts have yet to establish any case law on the issue.

That is the lay of the land facing the state’s workplaces. And it was the prompt for an April talk organized by the Salem-Roanoke County Chamber of Commerce.

The breakfast event, held April 21, offered a chance for business owners to hear from Gardner and Chakravorty, both labor law attorneys at Woods Rogers, and begin demystifying the new statutes and their implications for employers.

Despite the dizzying pace of recent legislative changes, some things still remain straightforward, said the duo.

Employers retain broad discretion to set their own stance on recreational marijuana use even if it is only done when an employee is off the clock.

“You don’t have to change when it comes to your general approach,” Gardner said. “If you don’t want your employees using marijuana, you can prohibit it, even if it’s not in the workplace. If they can’t pass a drug test and you want to take adverse action against them because of it, you are generally free to do that as long as there is not a medical component.”

That said, he added, whether a zero-tolerance policy or blanket drug testing is necessary or worthwhile is something that each business needs to assess for itself.

Places with safety-sensitive jobs – for example heavy machinery operators, delivery drivers or healthcare workers – will want strict policies in place to minimize danger and avoid liability risk.

But offices, restaurants and other workplaces might not need such a high standard and might actually find a zero-tolerance approach to be damaging in the tight labor market currently confronting managers.

“I mean, if the restaurant industry for some reason decided to start doing a bunch of drug testing —,” started Gardner. “There wouldn’t be a restaurant industry anymore,” concluded Chakravorty to chuckles from the room.

The legal advisers recommended a ban on recreational marijuana for safety-sensitive workers. The liability is just too great, and a failed drug test after an accident could fuel a court battle regardless of when an employee said the marijuana was consumed.

More highly attuned THC tests, including a breathalyzer version and one that tests salvia, are emerging, according to an audience discussion at the chamber event.

But the current leading tests can’t distinguish between present impairment and past consumption. That’s too dicey a situation.

“Until the testing situation improves in accuracy, I don’t know a good way to tell a safety-sensitive employee that they can have recreational marijuana on the weekends,” Gardner said. “… That person needs to be able to pass a drug test if there’s an accident for you to employ them.”

Medical marijuana use presents a more nuanced question but could be actionable if it’s preventing a staffer from doing their job and doing it safely. Use of marijuana or impairment while on-duty can be forbidden, and the chamber speakers recommended adopting policies that bar it.

Testing isn’t required to prove impairment, Chakravorty said. Employers need only establish that a worker isn’t performing correctly. The worrisome performance becomes the concern and the grounds for action.

Virginia’s new laws also don’t require employers to violate federal regulations or federal contracts. That means drug laws governing federally monitored industries or agreements still apply. Department of Transportation employees, for example, must be able to pass drug tests and wouldn’t get a pass for medical marijuana use.

Employers might be required to consider proposals for other means of accommodating an employee’s underlying condition or disability if medical marijuana is taken off the table. The Americans with Disabilities Act, which covers employers with a staff of 15 or more, requires an interactive process to attempt to find reasonable accommodations that would allow a person to continue in their job.

Courts in other states have differed on what constitutes a reasonable approach in medical marijuana cases. Virginia has no court precedent on the point yet.

Gardner advised taking a tack that demonstrates a sincere attempt was made. “Model it to where the average person who’s looking at it would sit there and say they really bent over backwards,” he said. “If you can, that’s the idea. To put yourself in a situation where the average person would look at it and say, man, the employer acted really reasonably.”

There are other laws that could come into play, and many situations that could require a case-by-case assessment to determine how to proceed. Employers should consult with legal counsel.

A general best practice would be to establish a drug use and testing policy, factoring in the needs and requirements of an organization’s industry, said Chakravorty and Gardner.

Once a policy is in place, communication with employees and training for managers is also key.

“Just make sure they know,” Gardner said. “I think if you have good communication, you’re going to deal with a lot of problems upfront that won’t turn into litigation. So have open communication, don’t hide the ball, set expectations.”