A problem faced by everyone from Highway Patrol Officers to employers is what does it mean to be “under the influence “and how can you test for it? Unlike alcohol, no breathalyzer can be used. At least not yet. All you can determine is marijuana is in the bloodstream (and it can last up to a month). Authorities are trying to establish a threshold for determining intoxication. Given this difficulty, how does an employer handle a potential issue where an employee is suspected to be using illegal drugs?
In most states you would want to have “just cause” or reasonable suspicion prior to accusing or testing an employee for marijuana use. In some states you are still permitted to do random testing. Either way, nothing bars you from discussing observed behavior in the work place. Exercise caution as to the business necessity, if a prescribed medication may be the cause, as this can be covered under the Americans with Disabilities Act (ADA).
Reasonable suspicion is not merely rumor or speculation but rather based on specific, objective facts and rational inferences from observing an employee’s behavior. Specific objective facts and rational inferences drawn from those facts must justify reasonable suspicion. Evidence sufficient to justify reasonable suspicion need not rise to the level of full probable cause. This may include marijuana on the breath, lapses in performance, inability to appropriately respond to questions, and physical symptoms marijuana influence.
Indications of marijuana use include, but are not limited to, the following signs:
- Odor of marijuana
- Slurred speech
- Red eyes
- Pupils dilated or constricted, or unusual eye movement
- Lack of coordination
- Weariness, exhaustion, sleepiness
- Frequent breaks outside of the building
In reference to testing for substances based upon this, even with an accumulation of facts and rational implications to be used for conducting a “reasonable suspicion” test, it can be dangerous for the employer to order an employee to submit to drug testing. It is wise to have two separate witnesses to the behavior, including a supervisor; to have all supervisors trained to detect signs of usage (this does not have to be a certified training); and to escort the employee to and from the lab involved. Important to note is that the employer should have a substance abuse plan and policy in place before taking any such action related to testing.
To learn more about medical marijuana use in your state please go to your Comply state law section.
