By Joanne Bailey-Boorsma
joanne@wktv.org

Business owners and employers do no have to permit marijuana use or possession on their property was the main takeaway for a recent Wyoming Kentwood Area Chamber of Commerce meeting.

The program, which was this past spring at the Express Employment Professional offices in Wyoming, was focused on helping local business owners understand the impact of the November-approved marijuana act. The act, which allows for the use of recreational marijuana, went into effect in December. 

The reason business owners can restrict marijuana is that federal law still deems it as an illegal drug. 

“The federal law does supersede the state law,” said Heather Merrick, a professional/technical recruiter for Express Employment Professionals. “From an employer standpoint, we can stick to the federal guidelines. We can still have a drug enforcement policy within our organization and say we are 100 percent drug free and marijuana can be included in that even though it is legal under state law.”

The bigger challenge is proving that a person is under the influence of marijuana when running equipment or at the job site, according to Kent County Prosecuting Attorney Christopher Becker. 

“Proponents were like lets treat this like alcohol and we can, but there is no per se limit for marijuana,” Becker said. For alcohol that limit is .08. The other issue is that alcohol has a bell curve where as marijuana does not, he said.

“You have five beers at eight o’clock in the morning…you are going to have a high alcohol content in your blood stream and that is going to go down by four or five o’clock and you are going to be fine, probably,” Becker said.

“Marijuana stays in for days. So one of your employees can go out on a Friday and smoke marijuana, come to work on Monday and still have marijuana in their system. Now is he impaired? Depends on the person and how it is impacting him.”

For an employer, they need to be able to show that marijuana is affecting the employee’s ability to operate a motor vehicle in a safe manner, not that it is just in the person’s system. 

“Legally, you can not operate, navigate or be in physical control of any motor vehicle, aircraft, snowmobile, off-road vehicle or motherboard while under the influence of marijuana,” Becker said. “We can do a blood test to say marijuana is in their system but just because marijuana is in their system does not mean they are operating under the influence.”

The prosecutor’s office  may not be able to charge criminally because it can not show the person is under the influence but civil liability may attach because a company has got an employee driving a motor vehicle or a hi-low while having marijuana in his/her system, Becker said, adding that some of these issues may have to be litigated in the courts.

With these gray areas on what is considered “under the influence,” now is the time for employers to take a look at any existing drug testing policies or create new ones, Merrick said.

There are three options that employers have. The first is to maintain a drug-free workplace. Those who are federally contracted or under specific federal guidelines must maintain a drug-free workplace because the federal government views marijuana as illegal, she said. 

Those who are not under federal rules have some factors to consider such as employment in Kent County is low, around 2.9 percent. Also, it is estimated that about 33 percent of workers will use marijuana in 2019. Statistics show that about 20 percent of people who are 26 or older are or will use marijuana, which could greatly reduce the possible pool of candidates for a business with a drug-free policy, Merrick said. 

Option two would be to continue doing pre-employment drug screening, continue doing accident injury drug screening but take marijuana out of that mix. Merrick said that the Occupational Safety and Health Administration, OSHA, recommends that employers do not conduct any test if an accident would have happened regardless if the employee had taken drugs or alcohol. 

“Say someone gets stung by a bee and they go to the med center and they are under the influence of alcohol, marijuana or whatever it is, they would have been stung by that bee whether they have it in their system or not,” Merrick said. “But you test them, they come up positive and now you are terminating the employee. So OSHA says not to test in that scenario because it discourages people from reporting accidents and injuries if they know they are going to get terminated because they are going to come up positive on the drug screen.”

Now if the accident involves a hi-low and it was caused by an employee who potentially was impaired, then do the testing, she said, adding “OSHA wants people to report accidents, so that is how they are looking at it.”

The last option is to completely stop drug testing. This move could save money on drug testing but could cause some safety issues, Merrick said. 

Merrick did agree with Becker that until it is determined “what is under the influence” and how that is tested, businesses will be operating in somewhat of a gray area on the marijuana issue which makes it even more important for businesses to make sure that the company’s drug policy is in place and specifies what you will be testing for.

“Whether you have a policy or not, it is a good time for employers to look at what they have, revamp or put one together,” she said.