By Cavitch Employment Attorneys: Madilyn M. Maruna, Max E. Dehn, and Doug DiPalma
Special Contribution By: Ed Bammerlin, Drug Recognition Expert, Olmsted Township Police Department
When Ohioans voted to legalize recreational marijuana, we began to receive questions from our employer clients regarding how this change would impact their workforces. In response, we hosted a panel discussion in mid-March to help employers navigate marijuana in the workplace. One dominant question for the panel was, “How do you know if an employee is high on marijuana at work?” Marijuana is detectable on a drug test weeks after an employee uses the drug, so a traditional drug test is not a reliable indicator of real-time impairment.
To help answer this question, Cavitch partnered with Ed Bammerlin, Drug Recognition Expert for the Olmsted Township Police Department, to create a checklist for employers to determine whether an employee is high.
The Marijuana Impairment Test
In the event of a workplace accident or when an employer reasonably suspects marijuana usage, employers should conduct an impairment examination of the employee and look for the following signs of impairment:
- Odor of marijuana
- Bloodshot/glassy/watery eyes
- Dry mouth
- Risk-taking behavior/decreased inhibitions
- Fatigue/sleepiness
- Anxiety
- Delayed reaction time
- This sign of impairment is hard to gauge if an employee is not operating a vehicle or performing a task where reaction time is evident. However, delayed reaction time should be noted where applicable.
- Poor Coordination
- Typical field sobriety tests, such as walking a straight line or a finger-to-nose test, can be utilized to gauge poor coordination.
- Impaired Perception/Motor Skills
- To gauge perception, employers can ask the employee to estimate the time without looking at a clock.
- To test motor skills, employers can ask the employee to count out loud or touch their fingertip to their thumb without looking.
- Paranoia
- Paranoia can manifest in the extreme, where an employee may feel as though someone is “after them.”
- Paranoia can also be more subtle, and the employee may be hesitant to perform the tasks they perform regularly.
- Memory Issues
- Memory issues are evident when an employee performs divided attention tests. For example, an employer could ask an employee to say the ABCs (without singing them) from the letter F to T, and while the employee is saying the ABCs, the employer instructs them to put the tips of their index fingers together and look at the employer.
The Importance of Documentation
Documentation is critical to protect an employer who terminates an employee for using marijuana or if an employee is injured in the workplace after using marijuana. This documentation can be used as evidence if an employee files for workers’ compensation or alleges discrimination.
First, an accurate and documented medical drug test is vital, i.e., hair, blood, or urine test. This shows that marijuana was in the employee’s system. Second, evidence of real-time impairment is also persuasive. An employer should utilize an impairment test and document the test as evidence of impairment if an employee is suspected of marijuana usage or after a workplace accident. Thorough documentation of the test includes the following:
- The name and title of the person performing the test;
- A thorough explanation of the 11 impairment indicators discussed above and tests performed; and
- An explanation as to the observations of the person performing the tests while analyzing the indicators.
Cavitch employment attorneys can help your company create an implementable policy regarding marijuana, as well as implement impairment testing in your workplace. Contact Madilyn M. Maruna, Max E. Dehn, and Doug DiPalma at (216) 620-7860.
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