Managing Employee Substance Use: Drug Testing, Training, and Liability in a Changing Legal Landscape

By Susan Chance, courtesy of SBAM-approved partner, ASE

Are your employees and managers using marijuana on the job? With more and more locations making marijuana use legal for medical and/or recreational use, it is quite possible. In fact, in one article by the Wall Street Journal, an employee admitted to not only smoking marijuana on the job and in front of his boss, but also to sharing it with his boss.

According to a 2022 Gallup poll 16% of Americans self-reported smoking marijuana. This is more than double the 7% in 2013 and is up 3% from 2021.When the participants were asked if they have tried marijuana, 48% of adults admitted to trying it.

Some employers are eliminating drug testing in favor of holding managers responsible for catching signs that employees are under the influence while working. This can be tricky and could also pose a liability if managers are not properly trained on the signs of various types of drug use, what signs could potentially be a health issue, and the proper way to investigate and report on their suspicions.

Some signs that may look like drug use could actually be caused by health issues like diabetes. If a person’s blood sugar is not in alignment, either too high or too low, they could have symptoms that might look like someone under the influence such as being confused or having slurred speech. The person can be dizzy, have the shakes, sweat, or have difficulty concentrating.

A manager who is not properly trained might ask the wrong questions which could result in HIPPA violations. They may also say something that could be seen as discriminatory or offensive. There is also a risk of ending up in a he said/she said situation if there is not a witness present with the manager and the employee.

It is important to remember that while marijuana use is on the rise, there are still many other drugs, as well as alcohol, that could create problems in the workplace. Many employers may have positions they believe they could not fill if the applicants have to pass a drug screen. However, if an employee gets hurt, or causes another employee to be hurt due to being high, the employer would be liable for allowing someone who is under the influence to work.

Employers must give careful consideration to their policies regarding drug testing. They must also make sure that their staff are trained on those policies, that managers are properly trained to spot potential issues, what questions they can and cannot ask, and what documentation is required. As always, it is very important to ensure that the correct procedures are followed for everyone, and that the information is updated as laws are updated.

Sources: Wall Street Journal; gallup.com; everydayhealth.com