Maintaining a Safe Workplace in States Where Marijuana is Legal

 
As state policies change, restaurant policies may need to adapt.
As state policies change, restaurant policies may need to adapt. Thinkstock

Now that more states are legalizing marijuana, restaurant owners and operators may need to reexamine their rules and procedures. 

Marijuana is now a legal substance in 26 states and the District of Columbia, with three more states—California, Massachusetts, and Nevada—following suit in 2017. The movement to legalize marijuana introduces many complicated workplace safety issues that restaurant owners and managers would be wise to consider.

According to a poll by our company conducted, 19 percent of small business owners said they would allow an employee with a doctor’s prescription for medical marijuana to use it while at work. The same survey found that 42 percent of small businesses do not have a written policy prohibiting employees from possessing, using, or being under the influence of marijuana at work. If, like many small business owners, you are not sure how to address marijuana use among your employees, now may be the time to reassess your workplace safety policies.

Even though individual states have moved to legalize marijuana, it remains classified as a Schedule I drug under the federal Controlled Substances Act. Further complicating the matter is that, unlike alcohol, there is no scientific evidence to determine when a person is considered to be under the influence. Marijuana can remain in the body for up to one month, depending on how much was used and whether it was ingested or inhaled.

Additionally, new OSHA regulations expected to take effect in January 2017 would place certain limits on post-accident drug testing in the workplace. While the final rule does not ban all drug testing of employees, OSHA maintains that “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment cause by drug use.”

So what is a restaurant owner to do if marijuana has become legal in his or her state?

Here are five things to consider about drug-free workplace policies:

1. You Set Your Restaurant’s Rules

As a business owner, you can determine your level of tolerance for marijuana use in the workplace. Consult an employment attorney to draft a policy that balances employee and customer safety with applicable law in your jurisdiction. The Substance Abuse and Mental Health Services Administration (SAMHSA) division of the U.S. Department of Health and Human Services is also a good source of information and resources on state and federal requirements.

2. Educate Your Employees

A culture of workplace safety starts with good communication. Talk with your employees about the consequences of on-the-job drug use and how it can impact both their co-workers and your customers. Make sure employees know what your drug tolerance workplace policy is, as well as what will happen if they do not comply. Reinforce your expectations by discussing this policy during staff meetings and new hire orientations.

3. Lead From the Top

The best way to demonstrate your commitment to following your company’s workplace safety policies is to model the behavior you expect from employees. It is also important to make sure shift supervisors and managers understand the company’s policies and agree to adhere to and enforce them.

4. Trust but Verify

As part of their policy, restaurant owners may wish to require employees take periodic drug tests. If this is the case in your business, consider not announcing the testing schedule in advance to reduce the risk of employees manipulating their results. Follow through with appropriate disciplinary action that is detailed in your workplace policy if an employee fails a test. Depending on how your policy is written and the employee’s history of offenses, this could range from issuing a warning to immediate termination.

5. Provide an Employee Assistance Plan

Drug addiction is a serious health issue. Employers can show concern for their employees’ health and well-being by providing assistance to those who may need it. This can range from adding drug treatment and rehabilitation services to employee benefits packages or helping to make referrals to third-party employee assistance programs or community-based services.

Drug use in the workplace can lead to dangerous yet preventable situations. Having documented policies that comply with applicable law is the first line of defense for restaurant owners who want to protect themselves from liability, as well as the health and safety of their employees and patrons. For guidance on drafting and implementing a drug tolerance policy, consult an employment attorney in your state of operation. 

David Quezada

David Quezada is Vice President of Loss Control for EMPLOYERS, America’s small business insurance specialist, which offers workers’ compensation insurance and services through Employers Insurance Company of Nevada, Employers Compensation Insurance Company, Employers Preferred Insurance Company, and Employers Assurance Company. Not all insurers do business in all jurisdictions. EMPLOYERS® and America’s small business insurance specialist® are registered trademarks of Employers Insurance Company of Nevada.


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