that the drugs or alcohol rendered the driver “incapable of driving safely.” Where a per se DUI typically focuses
exclusively on the driver’s BAC, impairment usually requires behavioral signs. Signs of impairment might include erratic driving, slurred speech, red eyes, strange or unusual behavior, or poor performance on field sobriety tests. Tough proof of BAC isn’t required for an impairment DUI, it is very oſten used as a part of the evidence. What does this mean for employers?
Limits have been established for a variety of drugs as well as alcohol. Generally speaking, drug testing levels are established by the laboratory to eliminate casual exposure and to support a legally defensible standard. Many states and the DOT require employers to test at particular limits, and if an employee tests at or above those limits, they are to be disciplined. Unfortunately, marijuana’s status as both a legal and illegal drug used for both medicinal purposes and recreational purposes further complicates an already complex issue.
The Issue with Marijuana Tere are many issues with marijuana legalization as it currently stands, but one of the largest relates to employers that try to maintain a safe workplace through a drug-free workplace policy. Let’s say I have a company that is located in a state where recreational marijuana is legal, and my employees work in a warehouse. One of these employees, Craig, tests positive for marijuana on a random drug test. Under our zero-tolerance policy that is compliant with all applicable state laws, Craig is terminated. We are then served with a lawsuit for wrongful termination. Craig’s claim is that he used marijuana
over the weekend and wasn’t under the influence of marijuana at work when he was tested. Craig claims that he is allowed to smoke pot over the weekend as long as he doesn’t do it too close to work time.
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While a case like this hasn’t come to
court yet, it is entirely possible that this situation could occur in many workplaces. A universal baseline for determining impairment has yet to be established. Unlike alcohol and some other drugs, marijuana metabolites can stay in the system for days to weeks, making it challenging for an employer to determine if an employee is actually impaired when they test positive for marijuana.
So What Is an Employer to Do?
Te first step to being able to provide a safe workplace is ensuring that you understand the issues. Now that we’ve given a high- level overview of impairment, under the influence, use, and abuse, it may be time to meet with your human resources department and review your current drug- free workplace policy. If you don’t have one in place—that’s okay! Tere is no beter time than now to get one writen. If you already have a policy in place, you
may want to update your policy to enable you to detect drug abuse and impaired employees. Review all applicable state laws and federal regulations to ensure that your policy is compliant, and also evaluate the policy for the different reasons for testing and position types. Remember, testing for pre-employment does not have to be the same as post-accident, and safety-sensitive positions can have different rules as well. Additionally, your policy should be
reviewed to ensure that you are using the best testing methodology for your needs. Tere are a variety of testing specimens and methodologies available, and not all are created equal. Oſten, employers find that using a variety of methods best suits their needs and allows them to beter protect their botom line.
How Do I Know Which Testing Method to Use?
Understanding which testing method is best for your needs is the next step to being
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As an employer, it is essential that you be able to differentiate between your employee’s prescription drug use versus their abuse.
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