iSaShiFtFromdrugteStingtoimPairmentteStingcominginthenearFuture ? labor & Employment law Section Chairs : AmandaBiondolino – SassLawFirm & LaKishaKinsey-Sallis – Fisher & PhillipsLLP
employershavingtrouble recruitingenoughemployees whocanpassadrugtest shouldconsiderimplementing impairmenttesting .
Thirty-eight states ( including Florida ) and the District of Columbia now have medical marijuana laws . Twentyfour states and DC have legalized adult recreational use . Florida is not one of those states …. yet . There is a strong move afoot to amend the Florida Constitution to legalize the recreational use of marijuana in Florida . Clearly , societal views over marijuana use , medical or otherwise , are changing . In fact , marijuana use is so pervasive that you can frequently smell it in public places .
Typically , marijuana consumed today is much more potent than it used to be . THC levels can be much higher in medical marijuana as well as in vaping products . The effects of marijuana consumption vary by user , but common shortterm effects are sleepiness , grogginess , relaxed muscles , loss of coordination , and distortions in the sense of time among others . These effects can put the user — and those in close proximity to them — at risk .
So , how does this shift in societal norms impact employers ? Employers
have a duty to provide a safe working environment . Many employers conduct drug testing of both applicants and current employees . Given that marijuana use is more and more prevalent , will employers who drug test applicants be able to recruit enough applicants who can successfully pass a drug test so they can meet their operational needs ? Once hired , will their employees be able to comply with the employers ’ Drug Free Workplace policies ? These are legitimate questions given that some employers with large call center operations or who employ large numbers of retail employees are having trouble recruiting and retaining employees because of the high incidental use of marijuana .
As a result , some employers are moving away from drug testing and instead are implementing impairment testing . Impairment testing screens for multiple forms of impairment to determine if an employee is fit for duty . Many people think of impairment testing in the traditional sense of drug or alcohol testing . But , instead of checking an employee ’ s biometrics ( such as blood , breath or urine ),
read and share the Lawyer magazine in digital format online now at hillsbar . com . employers now can now use computer technology to test how quickly and correctly an employee responds to a series of prompts before commencing work . For instance , employers can use a touchscreen app installed on an employee ’ s phone which calls for an employee to respond to gamelike prompts over a short period of time . If the employee cannot meet a job-appropriate level of timely responses , the employee will not be allowed to work .
Because such technology detects impairment , not its source , employers using it still would need to consider non-cannabis related causative factors for the impairment such as fatigue , age , or even disability . Nonetheless , the utility of such impairment testing is that it might help employers who are having trouble recruiting and retaining employees due to the prevalence of marijuana consumption in today ’ s society . Indeed , employers might even ask whether impairment testing would weed out such problems . n
Author : Gregory A . Hearing – Bush Graziano Rice and Hearing , P . A .
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