Contributed Column

Personnel Points

by Dave Mount, Westaff

Now that pot is legal in Vermont ...

The Legislature has passed and, at this writing, the governor is expected to sign a bill that allows Vermonters to use recreational marijuana within certain limits. I have been concerned about this bill since it was proposed last year, and my concerns are no less today than they were then. As employers, we are being exposed to an additional risk with our employees, and our employees are being exposed to risks as well.

Employment drug testing in Vermont has been very contentious over the years. Our laws are a lot laxer than those in other states. For example, in many states, post-accident drug tests are allowed. The reason is to see if an injured person is partly responsible for an injury because they were impaired while working. Someone who is operating a machine while high and is injured, is at least co-responsible for the accident. The states that allow post-accident testing recognize this principle.

Now with the Vermont marijuana law, an employee can theoretically go to the car and smoke and then return to work. If that employee is operating machinery, it is a very dangerous situation. The same, of course, is true with alcoholic beverages, and employees can sneak out and drink during their workdays, too, but it is much easier to detect alcohol than it is to detect cannabis. If a person comes to work high on cannabis, it is not immediately evident except, perhaps, for a change in behavior from the person’s norm.

There are some things that companies can do to protect themselves. Vermont law does allow pre-employment drug testing. There are some rules and regulations that you should be aware of. For example, a drug test must be administered following a conditional offer of employment. In other words, you must have agreed to hire the person following a successful drug test.

Another issue is the notice before a drug test. You must give a prospective employee 14 days’ notice before the drug test. The employee may waive the notice, but the company cannot. So, if you need a person right away, you may have to wait two weeks. That could cause a problem for some companies.

Another drawback is that drug tests are fairly expensive — figure in the $100 range unless you have a volume discount arrangement with the administrator. Also, the active ingredient in marijuana lasts in the system much longer than other drugs. So the test may show a positive result even after two weeks of waiting. Most other drugs do not last as long.

There are some positive steps you can take:

1. Enforce a no-smoking zone for your premises. Better yet, make the entire facility no-smoking. This will help insure that employees cannot smoke pot in the parking lot.

2. Do drug testing. If you decide to do it, drug tests must be administered to all prospective employees, not just to a select group. Set some parameters for acceptable levels of drugs in a person’s system. This will require some consultation with the test administrator.

3. Coach supervisors on ways to watch changes in employee behavior and how that may be caused by drug use. Drugs may not be the cause so tread carefully.

4. Treat everyone the same way. If you give a pass to someone, you must give it to everyone.

5. Remember that under Vermont law, the use of pot is now legal (after July 1, 2018), so having traces of pot in one’s system is not evidence of law-breaking.

If I had a chance, I have lots of drug-testing stories I could tell you. Unfortunately, drug testing is an unsavory business but it is the best we have.

Dave Mount is the founder of Westaff in Burlington..

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