The legalization of recreational marijuana in New Mexico has many business and healthcare employers scrambling to appropriately address marijuana use and potential impairment in the workplace. A reminder that neither The Lynn and Erin Compassionate Use Act nor The Cannabis Regulation Act prohibit disciplinary action against employees who bring marijuana to the worksite or are impaired by their use of marijuana while at work. This adheres even if an employee has a medical marijuana card.
For example, pre-employment screening, random drug-testing, and automatic post-accident testing may pry into employee privacy if they are not conducted based upon a legitimate business interest. An important exception to the Compassionate Use Act is that employers can always test based upon reasonable suspicion when an employee exhibits signs of impairment. It is, after all, never acceptable for employees to be impaired on the job. Certainly, an employee impaired by any drug â€“ legal or not â€“ in the workplace, especially in a healthcare setting where safety and privacy are of concern, is a legitimate business interest that supports reasonable suspicion testing for drugs, including marijuana.
Managers should pay attention and be able to recognize when team members are not acting like themselves. But unlike alcohol, there is no specific threshold for whatâ€™s considered impaired by cannabis consumption in New Mexico, making documentation of the signs of impairment critical.
Recreational Marijuana: Signs of Impairment
When you notice that an employeeâ€™s behavior is â€œoff,â€ objectively look for symptoms of impairment.
If you observe either an extreme version of one impairment indicator, or two or more milder impairment indicators, you should report your observations to a supervisor and/or human resource representative who has the authority to follow up with testing.
These indicators can point to other drug or alcohol impairment too, not just marijuana.
- Slurred speech, or inappropriate speech, i.e., sexual innuendo or jokes.
- Red, glassy eyes.
- Loss of focus during a conversation. Someone high on marijuana finds it difficult to hold a normal conversation, lacking the ability to stay focused.
- Loss of coordination. If you notice that someone has difficulty going from sitting to standing, or vice versa, stumbles or walks into obstacles, this could indicate impairment.
- Dramatically increased appetite and/or strange eating habits. After smoking or consuming recreational marijuana, many individuals will want to eat large amounts of junk food and sweets.
- Lack of energy and loss of motivation. Look for a loss of interest in activities that were once a significant part of the individualâ€™s duties. Sleeping on the job is another sign of impairment, generally.
- Emotional behavior that doesnâ€™t match the situation. This might include laughing or crying inappropriately and/or uncontrollably, or outbursts of anger.
- The smell of marijuana on the employee. When marijuana is smoked, it has a strong earthy scent that smells similar to skunk spray.
To help address potential impairment, whether by recreational marijuana or other substances, business and healthcare organizations should do several things:
- Do not tolerate possession or use of marijuana or other drugs at the job site, just as you wouldnâ€™t tolerate alcohol consumption on the job.
- Educate employees about the company drug (including marijuana) policy and the repercussions for impairment on the job.
- Train staff to see this as a critical patient safety concern that requires them to report signs of impairment to their supervisors and/or human resources representatives immediately.
Employers are best served when their policies and procedures around drug testing are reasonable, grounded in business necessity, and will not unnecessarily elicit medical information about employees.â™¦
Cristin Heyns-Bousliman, Esq., THRP, is Principal and Practice Leader, Human Resources Consulting for REDW LLC. She combines extensive experience in human resources management and strategy, employee relations and engagement, and compensation and benefits. She also maintains a highly valued and in-depth understanding of federal and state employment law as a former litigation attorney specializing in employment law.Â