Smoke 'em if you got 'em? {Marijuana in the workplace}

Note: This article was originally posted in 2017 and has been updated with current information on the topic.

Oklahoma passed a medical marijuana bill in 2018 becoming the thirtieth state (Including Maryland) to do so. State by state the legalization of marijuana for medical and recreational purposes is gaining ground. The chances of employees being high at work are definitely increasing. Businesses are scrambling to adapt.

Decriminalization v. Legalization

So far thirteen states have decriminalized marijuana, allowing recreational use. Up from just eight in 2017. Those are Connecticut, Delaware, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, and Rhode Island. Nine states have legalized marijuana for recreational use (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington) 

While this legislative activity is taking place on the state level, the drug still remains illegal under Federal law. In fact, it remains a schedule I drug alongside opiates and synthetics drugs. The court battles that were expected with the U.S. Justice Department after Colorado legalized marijuana have not occurred.

Decriminalization does not mean legalization. Decriminalizemeans that possession of small amounts no longer carries criminal penalties. Most states offer a civil violation or no violation at all. Legalizedmeans that marijuana is completely legal to possess. In this case, states have set limits as to the amount that can be possessed and qualifications regarding trafficking.

High on the job

A survey of 10,000 California cannabis users revealed 58% of working professionals use daily and 31% consume while working. (Eaze Insights)

Some businesses not only allow the consumption of marijuana at work, but they also encourage it. Those that do say that it helps employees with stress and anxiety promoting longer work days and creativity. It should be noted that these businesses are mainly in the legal cannabis industry or tech fields.

What is at odds are company drug policies and making accommodations for those with disabilities. Companies want to be inclusive but want to maintain standards as well as workplace safety. Medical marijuana users are looking to the American Disabilities Act for protection.

American with Disabilities Act

The American with Disabilities Act  (ADA) was signed into law in 1990. Succinctly, the ADA prohibits employers from discriminating against those who are disabled and requires employers to provide reasonable accommodations to a qualified individual with a disability to perform the essential duties of their job. Illegal drug use is not covered as a disability. However, the ADA does allow for the use of drugs taken under the supervision of a health care professional. Marijuana may be legally prescribed under state law but remains illegal Federally. Then there’s the Drug-Free Workplace Act of 1988 requiring that Federal contractors provide drug-free workplaces as a condition of receiving a contract.  The ADA states that employers can require employees to conform to the Drug-Free Workplace Act. Further, under the ADA drug testing is not considered a medical examination, allowing employers to test for the use of illegal drugs. 

What the courts have found is that while marijuana remains illegal under federal law the ADA cannot be applied to individuals with disabilities. However, state disability laws may apply in states where medical marijuana use has been legalized.

Court challenges

Rights of the employer and the employee vary state by state. As examples: Arizona, Connecticut, Illinois, Minnesota, and New York laws prohibit employers from discriminating against employees who use medical marijuana and must make accommodations, some further citing-unless the employee is under the influence at work. Florida’s recently passed law does not require an employer to accommodate on-site medical marijuana use. California passed Proposition 64 in 2016, which allows for the recreational use of marijuana. However, the law protects an employer’s rights to enforce workplace drug policies. Rhode Island’s law protects the employer’s right against accommodations for on-site consumption but protects the medical marijuana cardholder against hiring discrimination. 

A 2017 Rhode Island court case ruled that employers could not refuse to hire medical marijuana cardholders even though the person would knowingly not pass the employer’s pre-employment drug test required of all applicants. (Callaghan v Darlington Fabrics Corp., No. PC-2014-5680, Rhode Island Superior Court, May 23, 2017)

Another twist to the saga is the off-site or off-duty use of marijuana which may be legal in the specific state but against company policy. In one of the first court cases of off-site medical marijuana use, the Colorado Supreme Court heard the case of Coats v Dish Network in 2010. The court upheld the firing of a man who failed an employer random drug test for marijuana use. Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient after he failed a random drug test. Although the employee claimed that he never used marijuana at work nor was he ever impaired while at work. The case was the first to look at whether off-duty marijuana use, legal under Colorado state law, is protected by Colorado’s Lawful Off-Duty Activities Statute. The statute states that employers cannot fire employees for doing legal activities while not at work. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supported employer rights to enforce their drug policies. Since this case, courts in California, Oregon, and Washington have also ruled against employees. 

In July 2017 and went against the employer. In Barbuto v Advantage Sales and Marketing, LLC the Supreme Judicial Court of Massachusetts ruled in favor of an employee to use medical marijuana outside of work. The employee claimed that since they have an ADA qualified disability (Crohn’s disease) the employer must make accommodations for an employee to use medical marijuana off duty. The ruling was based on the state’s anti-discrimination law. The court rejected the employer’s argument that marijuana is illegal under Federal law and to allow accommodations would be unreasonable.

Maryland

Maryland is still getting going on its version of medical marijuana. The law was passed in 2013 and took effect in 2016. Dispensaries began opening in 2018. Maryland decriminalized possession of fewer than 10 grams of marijuana in 2014.  Marijuana is still considered illegal but possession of smaller amounts will result in a civil citation rather than arrest. Each year since there have been bills introduced to further decriminalize marijuana. In 2016, a law passed making possession of paraphernalia a civil offense. In 2017, those convicted of marijuana offenses may petition to have their records expunged. 

What to do, what to do…

While the use of marijuana is becoming more openly acceptable in society and states have either made it legal or decriminalized, businesses are still within their legal rights to set drug use policies and restrictions.

Confused? Don’t feel bad. It’s a tricky topic that is evolving almost monthly. Employer’s need to have hiring policies as well as policies to guide employees. These policies have to be living documents and open to change. Having employees and dealing with human resource issues is difficult, especially for small businesses. The rules are constantly changing. There will always be challenges to any policy or rule. You have to stay ahead of the curve and aware of what’s taking place. 

See the blog archive for other posts regarding workplace discrimination and medical marijuana.
Which came first... February 2017

Languages spoken? June 2017

Ban the Box update August 2016

Health History Discrimination May 2016
Medical marijuana in workplace May 2013

Ideologies in the workplace

Watching what unfolded in Charlottesville in mid August I noticed one of the protestors wearing clothing marked with the Verizon logo, their uniform. Later Verizon issued a statement stating that the company in no way supports the white supremacist groups or the hate and bigotry associated with the groups. It may be sometime, if at all, when we hear if this person was an actual employee and was disciplined or terminated. Obviously, this person, whether an employee or not, put Verizon in an awkward position.

Publicly representing the company for which one works does limit what an employee can do in their off duty hours. Some businesses have policies specifically stating that employees cannot express political views while representing the company. What the employee does off duty when not representing the company and whether the company can control these activities has come under court scrutiny. Most notably in the use of medical marijuana. (Smoke ‘em if you got ‘em {Marijuana in the workplace})

If an employee is wearing the company uniform and participating in activities that go against the company values the company may have legal precedent to terminate or discipline the employee. The question that came to mind is what if the employee keeps the off duty activity anonymous? They do not espouse their ideologies at work and is a solid employee/coworker. Somehow their off duty activities are exposed and now the workplace becomes a hostile environment. Are there grounds to terminate that otherwise productive employee?

What are employer’s rights?

Allen Smith, J.D., wrote an excellent article for the Society For Human Resource Management website, Can or Should Employers Fire Employees Who Participate in Hate Groups? Smith reinforces what I have found, that the answer is not clear. When what employees do off duty creeps into the workplace several legal precedents have to be considered before an employee can be fired. Allen Smith makes the following points.

No federal law is violated if a worker is fired for being a member of a hate group or verbally expresses beliefs. Courts have rejected KKK members claim of religious protection under Title VII of the Civil Rights Act of 1964. Freedom of speech protections under the First Amendment does not apply to private employers.

Most states are work at will states meaning that employees can be terminated for any lawful reason. California, Colorado, New York, and North Dakota have laws protecting workers against being discriminated against while participating in lawful activity outside of work. However, if it becomes known at work that an employee was participating off duty in a hate-based protest, an employer may choose to terminate. Basing their action on violations of non harassment policies.

When dealing with customers who are offended by an employee’s ideologies, businesses have to consider the impact on the business. If the person continues to be employed will that affect business? Or is firing the employee at the risk of being sued better for the company?

Human resource issues are not cut and dried. Even though similar issues may have arose in the past, each case must be examined on their own. Always contact an employment law attorney before making termination decisions.

Employee implants

In 1985, Dr. Hannis Stoddard invented an injectable microchip based pet recovery system. In the last decade Hollywood picked up on the theme by injecting humans with microchips. Who knows what goes on in the secret world of the military and espionage? This week a Wisconsin company made the news when it announced that employees had been offered microchip implants to use as a method for building access and food purchases. This is something that’s happening and is going to change the workplace.

What are Microchips?

Microchips are rice-sized radio frequency identification devices that use passive Near Field Communication (NFC) technology to transmit data when held a few inches away from readers. Passive meaning that the microchips hold data that the reader recognizes but the devices cannot receive data. The devices were popularized in the 1990’s for recovery use in pets, being injected under the skin in the neck/shoulder area.

The technology was tested for office uses in 1998 when British scientist Kevin Warwick experimented with microchip implants to open doors, and switch on lights. The technology has been experimented with since that time for commercial and medical uses with little success or popularity.

In January 2015, the Swedish company Epicenter began offering voluntary implants to its employees. The chips are used as a replacement for magnetic key cards to access secure areas and for use as payment in company stores. For human use in this manner, the microchip is inserted in the fleshy area between the thumb and forefinger. Three Square Market, a Wisconsin technology company, have partnered with the same Swedish company who conducted the inserts for Epicenter and plans on using the technology in the same manner.  This is the first time the technology has been used in a broad setting tagging workers.

Microchipping issues

All new technology brings concerns of privacy and security, which begets legal debate and regulation. In this instance the technology also raises religious concerns.

According the National Conference of State Legislatures, nineteen states have some law referencing microchipping. Five of those states (California, Missouri, North Dakota, Oklahoma, Wisconsin) have specific laws prohibiting the mandatory implantation of microchips. Some states currently use tag/bracelet based RFID technology to track prisoners. After some recent high profile escapes there has been legislative debate to use tracking implants on prisoners.

Mark Gasson is a British scientist who is a proponent of enhancing humans through the use of implanted technology. In 2009, Gasson inserted a microchip into his own hand and went on to demonstrate that not only could the device be hacked but could receive a computer virus. This and other experiments raise security concerns. Implanted microchips have the potential to store personal and health data. As with any data storage device, the implants would have to be protected against hacking.

Wearable technology is not new to the workplace. Watch like and other devices are used to track employees throughout their day. The November 2016 post, Employee monitoring, gave an overview of wearable tech in the workplace. The concerns raised were legality of employer access to health data as well as monitoring outside of the workplace. With implanted devices the concerns are the same except in this instance the employee cannot be separated from the monitoring device.

Another issue is of a religious concern. Christians believing that this type of technology is another step closer to the writings in the book of Revelation. The EEOC has ruled in favor of Christian employees in past cases where a company has implemented fingerprint scanning.

The few people I've spoken to have said no way. The Swedish company, Epicenter, has parties celebrating an employee's decision to be implanted. The Wisconsin company, Three Square Market, already has fifty employees agreeing to the implants.

Employers considering this or any type of employee tracking devices should do considerable research. Definitely work with an attorney to develop policies and updates to employee handbooks.

Technology is ever changing our world. Whenever any new piece of technology or approach to employee monitoring is introduced there will be legal issues. How the devices are deployed, what they are used for, how data is collected and stored, and what the data is used for will all present legal challenges.

George Orwell is probably very happy.

Read other posts regarding employee monitoring and privacy. Please feel free to share and like.

Employee monitoring November 2016

Social media checks July 2016

Workplace monitoring May 2016

Teach your employees well

Small business hacking is becoming more prevalent. The payoff isn’t as big but the opportunity is greater and security is lacking. Security firm Symantec reported in 2016 that 43% of cyber attacks were against small business. Small businesses have little in the way of security and employee training. They often have more to lose in the sense that they have less cash flow or all of their money is tied up in their business. Making them more likely to pay ransoms. (Ransomware is explained in more detail in our post-If you ever want to see your files again…)

Attacks can be as simple as rerouting the web address to a porn site, locking all of the computers for a ransom, all the way to hacking financial data and cleaning out bank accounts. More than half of the companies attacked were forced to go out of business. Maintaining sound computer security cannot be emphasized enough.

The website Small Business Trends, in an article posted January 3, 2017, stated that 48% of attacks are caused by an employee error. In addition to updating security software one of the biggest defenses owners can deploy is educating their employees on cyber attack indicators. The malware has to enter the system somehow. Simply clicking on attachments will send the virus into the network to do its work. The more stealthy viruses will enter the system without a show of existence. These are meant to mine data from the system. By the time you find the virus the bank accounts are fleeced.

Regularly train employees on different types of attacks and how to defend against them. Establish a policy for computer usage. Explain what is acceptable Internet use. Malware can be injected via email attachments or links to websites. These links can be introduced through email or social media. Demonstrate what a suspicious email, link, social media contact looks like. Practice solid password policies and change regularly. Encourage employees to speak up when something is suspicious and do not click on the suspicious activity.

Even if you do not think you store valuable data, although customer records are a valuable commodity, the chance of losing your business data or risking a financial attack is too great a chance to take.

See our blog archive for other posts relating to cyber security:

Scam Websites November 2016

If you ever want to see your files again…August 2016 

There’s been a breach February 2015

Employee monitoring

German clockmaker Peter Henlein developed a clock that could be worn around one’s neck in the early 1500’s. Called the Nuremberg Egg, the device had a miniature torsion pendulum and coil spring that allowed it to keep fairly accurate time. Since then humans have been obsessed with wearable devices to provide feedback and information on everything from the time to the weather to biometric data. Today’s technology adds the ability to track the device and by association the wearer.

GPS

GPS technology hit the public aviation sector in the 1980’s. In the 1990’s automakers began installing GPS navigation services in their vehicles. Once navigational systems were installed it was a short leap to use the GPS data to track where the vehicle had been by downloading the data. The next step was live tracking of the vehicle, which is commonplace today for most fleet operations and emergency services. The miniaturization of the technology allowed GPS services to be installed in phones and wearable devices.

Businesses have been tracking their fleets for some time. Not only as an accountability measure but also as a way to collect and analyze data to improve routes. In the last several years, companies have been using GPS data from Smartphone’s to track employee locations. Most recently, companies have been issuing employee wearable devices that not only track their location but also performance and sometimes health data.

Wearable devices have become a $15 billion a year market, mostly charged by the introduction of the Fitbit in 2009 and the Apple watch in 2015. As with fleet tracking, business is not missing out on the ability to track employees.

Managers can monitor employee location and production to better understand the needs of the workplace. Studies have shown that employees that are tracked do have better performance. There have been myriad studies over the years that suggest workers perform better not because of new technologies but because they are being watched. Which overall benefits the company.

Legal?

There are legal concerns that have been raised, such as invasion of privacy regarding intrusiveness into the employee’s activities and health data. Some of the devices allow the monitors to see biometric data, which could reveal an employee health issue violating privacy laws.

As the courts and laws catch up with technology the question of legality can be gray. Like phone call/text data and location, data from tracking devices are becoming the status quo for evidence collection. Data from tracking devices have been used for years in auto collision court cases. Personal fitness wearable device data has just recently been introduced to the courts in personal injury cases and police investigations.

Most of the questions arise regarding invasion of privacy, especially outside of the workplace. Company owned vehicles, so far, appear to be legal to install GPS devices and track. However, when a company puts a device on an employee’s personal vehicle it gets trickier. Even company owned vehicles could be targeted as any issue or law can be questioned in court.

Company owned Smartphones seem to fall in the category of the vehicles regarding privacy. Employees don’t have much of a case until the employer requires the use of the phone out side of the workplace, during the employee’s personal time.

Wearable devices issued by a company to employees have not yet been used in a court case. Anytime data is being collected, it is only a matter of time before one party uses the data against the other. Whether it is company v. employee or vice versa.

As with any company policy, how the employees are informed of the policy and how it is implemented goes a long way in keeping the business out of court. As cases start to go through the courts and company policy is examined, the court decisions will affect how policy is shaped from thereon. Simply, one bad policy or managerial decision can change the landscape for everyone.

Worker’s rights advocates will be watching the use of wearable technology in the workplace. As with any new rule of law or technological application businesses should be cautious to jump on the bandwagon until they have thoroughly researched the use of such devices and the end goals for collecting the data.