It’s 4:20: Do you know what your employees are doing?
 
It’s 4:20: Do you know what your employees are doing?
30 AUGUST 2017 7:27 AM

Legalized marijuana in the workplace has implications for the hotel industry. Here’s some advice for what hoteliers should do. 

It’s time hotels and resorts address the issue of marijuana in the workplace. That’s because marijuana use is becoming pervasive given the 29 states and the District of Columbia that, to date, have legalized medical marijuana, and the eight states (plus D.C.) that permit its recreational use (another 14 states have strong policymakers currently working to legalize and regulate cannabis).

These days, marijuana tourism is all the rage: Folks can take hits before hitting the slopes in Colorado, eat vegan pot brownies while on the beaches of California or vape on the way to playing the slots in Nevada. At the same time, hotel workers in these states, as well as Oregon, Maine, Massachusetts and beyond, can legally consume weed too. The upshot: As marijuana laws become more liberal, hoteliers must face the legal and business implications of the drug’s use by employees.

What happens if a hotel employee suffering from a disability or serious condition has been prescribed medical marijuana? Must her employer make accommodations allowing her to use the substance on the job? Until now, the short answer has been no—at least in California.

The Compassionate Use Act of 1996, which legalized marijuana for medicinal purposes in the Golden State, specifically provides that an employer is not required to accommodate for an employee’s use of marijuana. Along the same lines, the California Supreme Court has held that an employer may require pre-employment drug testing and take illegal drug use into consideration when making employment decisions.

The court reasoned that no state law—namely, California’s—could completely legalize marijuana given that the federal government has yet to jump on the cannabis train. Still, the legalization of medical and recreational marijuana is spreading from state to state fast and furious, and in the wake of society’s ever-evolving stance on the topic, answers to these preliminary questions may not be so black and white.

Take, for example, a recent decision in Massachusetts. Justices there ruled that an employee terminated because she smoked marijuana could sue her employer for handicap disability discrimination. The employee, who consumed marijuana to treat Crohn’s disease, explained this fact to her employer when hired. Despite assurances that her medical marijuana use would not be an issue, the employee was fired when she predictably failed a drug test administered after she accepted a job offer; the employer asserting that it followed federal (and not state) law as it pertained to cannabis. In response, the employee sued, alleging, among other things, that the employer discriminated against her by refusing to accommodate her medical marijuana use. The Massachusetts Supreme Judicial Court agreed—the first time a state’s high court recognized that the right for such an accommodation may exist.

This ruling came just weeks after a Rhode Island Superior Court, in an opinion titled, “I get high with a little help from my friends,” found a company liable for discrimination for refusing to hire a medical marijuana card holder because she would have failed a drug test. In setting forth its ruling, the court in Rhode Island predicted “an onslaught of litigation concerning the lawful use of marijuana.” Given the shifting tide when it comes to the drug, as exemplified in Massachusetts and Rhode Island, hotel and resort owners and operators would be wise to embrace that Bob Dylan lyric, “For the times, they are a-changin’.”

This is true from a business perspective as well. In fact, employers in the hospitality industry should consider rethinking any zero-tolerance policy regarding marijuana where the drug is legal. Colorado makes for a great case study. In that state, the initial reaction of employers to the legalization of marijuana for recreational use was to implement stricter drug testing policies.

But the hard line taken by employers had an unanticipated negative impact: a reduction in the workforce and applicant pool. Indeed, employers quickly determined that if they disqualified every job seeker that consumed pot, there would be fewer and fewer candidates to choose from. Consequently, marijuana testing by businesses in Colorado has declined, and some companies have eliminated cannabis from their drug testing altogether.

Notwithstanding the lessons learned in Colorado, a zero-tolerance policy is rather difficult to enforce. Is it really possible to definitively know if an employee is stoned at work? In the absence of tangible proof of marijuana use, can an employer take action against an employee based on circumstantial evidence, such as red, irritated eyes, for example? Unlike blood alcohol testing, there is no test to determine whether an employee may be under the influence of marijuana at work. In fact, because THC—the psychoactive chemical in cannabis—can stay in a user’s system for weeks or even months, firing an employee for a positive drug test may be the equivalent of terminating an employee for having a couple of beers a week ago Saturday.

Some argue that, to prevent invasion of privacy claims, employers who maintain zero-tolerance policies in connection with marijuana use should only apply it to those in jobs where impairment could jeopardize employee safety or the safety of others. But this raises the question: What positions are potentially dangerous? Waitstaff, who carry trays of hot food that could spill? Dishwashers, who work with pressurized hot water and handle knives? Housekeepers or bellboys, who constantly interact with guests? A tough call, to be sure, not to mention that implementing a selective policy could result in a slew of disparate impact lawsuits.

So what are employers in the hospitality space to do in the age of legalized marijuana? At a minimum, they should work with counsel to review current polices, make sure their managers and supervisors are properly trained on how to deal with these sensitive issues and emphasize to employees that marijuana use on or off the job can, depending on circumstance, still be cause for termination.

Hoteliers must also keep apprised of the evolving law as it pertains to medical marijuana and the need to make associated accommodations in the workplace.

Diyari Vazquez is counsel at Michelman & Robinson, LLP, a national law firm with offices in Los Angeles, Orange County, San Francisco, Chicago and New York City. She represents clients in the hospitality industry, and advises them in matters related to labor and employment law, including discrimination, harassment, wrongful termination, reduction in workforce, hiring, wage and hour issues, and the like. Ms. Vazquez can be contacted at 310-564-2670 or dvazquez@mrllp.com.

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