Trickledown of Pennsylvania’s Medical Marijuana Act: Relying on Reasonable Suspicion Programs In Place of Routine Marijuana Testing (Part 2 of 2)

Ashley J. Puchalski, Esq., apuchalski@tuckerlaw.com, (412) 594-5625

Last issue, we discussed whether it still makes sense for local employers to routinely test employees and applicants for marijuana considering Pennsylvania’s Medical Marijuana Act, changing social/political landscapes, and other barriers to hiring that many companies now face.  This issue addresses the natural follow-up question many have: how do we scale back testing while keeping the workplace safe?

One common approach is to treat marijuana use like alcohol use for non-DOT positions.  This relies on a strong substance abuse policy and reasonable suspicion program.

While there is no magic recipe for the contents of a substance abuse policy, employers generally consider including the following in their manuals:

• A clear mandate that employees always be in a suitable mental and physical condition to perform their duties—free from the effects of alcohol, illegal drugs, or legal drugs that impair their ability to safely perform job duties.
• A ban against reporting to or remaining at work while under the influence of medical marijuana, along with a definition of what the company considers to be “under the influence” of medical marijuana.
• A requirement that employees report prescription drug use that could interfere with the employee’s ability to perform his job or to do so safely.
• A prohibition against the consumption, sale, possession, or purchase of illegal drugs (including medical marijuana) on company property or on work time.

It’s also a good idea to notify employees that the company reserves the right to conduct a drug test (including for marijuana) under appropriate circumstances.  Which brings us to crafting a reasonable suspicion testing program.

The key to reasonable suspicion drug testing is first-hand observation of signs of impairment. Managers should be trained on how to recognize and document objective signs of substance abuse that violate the employer’s policy.  Beyond that, remember not to lose focus of these key concepts that are too often overlooked:

• Train managers how to spot questionable behavior by focusing on an employee’s odors, movements, emotions, speech, actions or inactions, and physical symptoms such as dilated or bloodshot eyes, flushed face, sweat, etc.
• Get back-up for the manager who first spots the concerning behavior.  Ideally, at least two managers can have an in-person conversation with the employee where they can take note of any physical signs of impairment.
• Remove the employee from safety-sensitive areas.  Consider taking them to a conference room or office where the managers can have a quiet, confidential conversation to explore their concerns.
• Give the managers an easy-to-use reasonable suspicion checklist. Prepopulated checklists can be a more efficient and reliable way for managers to provide critical information rather than having them start from scratch by writing a narrative on a series of blank lines.  
• Consult with HR and your attorney about next steps.  A variety of legal issues can spring to the forefront in these situations, including compliance with the Medical Marijuana Act, state and federal anti-disability discrimination laws, and federal and state wage laws.

If you are interested in developing a reasonable suspicion drug testing program as an alternative to routine marijuana testing, you should work with legal counsel to review your company’s substance abuse policy and reasonable suspicion program, training, and forms.  Done correctly, this approach can help to mitigate some of the uncertainty posed by Commonwealth’s Medical Marijuana Act.