Marijuana has been in the news a lot lately. In recent years, recreational use has become legal in Colorado, Washington, California, Massachusetts, Maine, Alaska, Nevada, Oregon, and Washington D.C. Plus more than twenty-five states allow marijuana use for medicinal purposes. Recent polls show, for the first time in history, that a majority of Americans would approve of complete legalization of marijuana. So what does all this mean for employers (including household employers), particularly those in states where recreational use is legal or may become legal?
The important thing to remember is that none of these laws require an employer to allow drug use in the workplace, or to tolerate employees who come to work under the influence. If you have a drug-free policy in place for your home, you are not required to alter it. Therefore, your nanny or other employee that violates this policy can still be disciplined or terminated, regardless of what the laws in New York are regarding marijuana legality.
The difficulty that may arise in an employer’s mind relates to what your employee does in their time away from your home, their workplace. If your nanny has a few drinks after work, you might not think twice about it. But if she smoked marijuana after work (if you lived in a state where it’s legal), would you have a different reaction?
This all comes down to your personal choices, and these issues should be discussed with a candidate prior to hiring. You have the right to implement a drug-free workplace policy. Included in the employee handbook, the policy needs to clearly state why the policy is being implemented—to ensure a safe and healthy workplace. Include consequences, such as immediate dismissal, but take care that these consequences are consistent with other existing personnel policies, and of course, any applicable laws.
In the drug-free workplace policy, an employer may want to include information on drug testing. While most private employers have the right to test for a wide variety of substances, federal, state, and local regulations may apply. However, according to the U.S. Department of Labor, employers who drug test without a drug-testing policy are exposed to liability. Employers may request that employees take a drug test after a job is offered and that employment is contingent upon a successful outcome. Local drug stores sell drug testing kits for about $20.
Again, just because marijuana is now legal in many places, you still have the right to enforce a drug-free environment for your workplace. If the laws change in New York, it may be prudent to make changes to your policy to clarify what you expect from your employee in terms of impairment, safety, marijuana use, and termination.
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