PORTLAND, Ore.-In the absence of a standard that determines when someone is impaired by marijuana, employers are often left to rely on reasonable suspicion when attempting to prove an employee is under the influence of the drug and it is affecting their work.
Unlike alcohol, where .08 on a breathalyzer or blood test determines if an individual is intoxicated, experts reminded there is no similar indication for marijuana use. When an employee is often sent to the occupational health center or hospital for post-incident testing, whether or not the individual is impaired by marijuana is a difficult call to make.
"The big problem right now is the test. Current tests cannot discern whether someone is clearly impaired at that moment or smoked marijuana a few days ago," said Kelly Tilden, partner and chair of the employment practice group at the law firm of Farleigh Wada Witt in Portland, Ore., who noted that THC, the chemical in marijuana, remains in the system much longer than alcohol.
Employers are often then left to rely on reasonable objective evidence, sources indicated, such as adverse statements from the employee suspected of using marijuana, marijuana possession and eye-witness accounts of the worker's behavior.
Elaine Rosenberg, GM of Advanced Reporting, a professional background screening services CUSO of Maps CU, Salem, Ore., says relying on reasonable evidence to prove someone is under the influence can be difficult if managers do not have reasonable suspicion training. "A manager could have the suspicion someone is impaired in some way and not able to perform their job or duties. But if the manager does not have training on how to correctly identify the signs of someone being impaired, then it will be very hard to move forward against the employee."
'Reasonable Suspicion Training'
Rosenberg said industry groups, hospitals and occupational health groups provide reasonable suspicion training.
Sources said random testing is the best way to ensure the workplace is drug and alcohol free. However, they cautioned that it's not an easy decision to move forward with random testing, saying it's a balancing act.
"I represent a large number of credit unions in Oregon and Washington State and I would say maybe one-third of them use pre-screening drug testing and fewer than that do reasonable suspicion drug testing or random drug testing," said Tilden. "Employers must balance employee privacy with actual workplace safety risks when developing policies and practices to address medical marijuana in the workplace."
Rosenberg added that pre-screening drug testing for a new hire is really an "intelligence test. Because you know it's going to happen. A random drug test is how you create a drug-free workplace."
