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Fictional Mailbag – Is “Pot” Luck Talk A Drug Policy Violation?

February 23, 2017

By Michael G. McClory

At The Bullard Edge we see some interesting questions in the (fictional) mailbag.  Today’s letter comes from Rex, the CFO at a large company.  He has discovered a lunchtime marijuana recipe exchange club involving 4 employees, each of whom is a cancer survivor.  It seems like pot talk and nothing more, but Rex wants to know whether drug testing is appropriate or whether any other action is appropriate.  Here is Rex’s letter and our response.
 
Rex’s Question:
I feel like I have 4 options and all 5 of them are wrong.  Hopefully, The Bullard Edge can help.  Let me say upfront that I am not in HR.  I am the CFO of an 1100 employee company.  I do not wear multiple hats.  The problem is that I do not know where to turn because this issue involves the HR director (Ned) and at least three others.  There may be more. 
 
Here is the situation.  On Tuesday I was in one of the break rooms around noon.  It was crowded, as usual.  Ned was sitting at a table near the vending machines.  At the table with him was an eclectic mix of employees: Milo from Logistics, Tammy from Production, and Ginger from Marketing.  They do have something in common.  Each of them is a cancer survivor (and for that reason all of the names I am using are fake). 
 
I was fishing for quarters in front of the pop machine and overheard a bit of their conversation.  It sounded like they were talking about green bean casserole, which I absolutely love.  So I lingered a moment.  The next thing I hear is Ginger saying that the marijuana butter makes the dish.  She showed the group a picture.  In other words, they were talking about marijuana green bean casserole (which I do not love and have never had).
 
In my head I am screaming, “What!!?”  Ginger, who you have not met, is a classic grandma.  She has reading glasses and salt and pepper hair; she is not someone who passes the salt and pepper so you can season your marijuana dishes.  Or, maybe she is a pothead.  I don’t know.
 
I asked around and found out that this is a weekly thing.  The four of these folks get together on Tuesdays at lunch and exchange recipes ~ marijuana cooking recipes.  It sounds like a number of other employees know about it and find it cute.  We are talking about marijuana sliders, pot pork schnitzel, and even “infused” rice crispy treats, among other things.
 
We have a drug and alcohol policy that applies to all employees, including the HR director.  It prohibits what you might expect.  It is a violation of the policy to “distribute, manufacture, sell, offer for sale, trade, transfer, use or possess” marijuana in the workplace, on company premises, or during work time.  It is also a violation of the policy to be “under the influence” of marijuana while working.
 
Although other employees know about this Tuesday “pot luck club” I have not found anyone who said they do anything more than talk about marijuana recipes.  There is no sampling going on and no one selling “ingredients.”  It might just be pot talk.  At the same time, am I really supposed to believe that they exchange all of these recipes and don’t use them?  If they use the recipes they might be impaired; your blog told me that effective marijuana impairment testing does not currently exist.
 
So what do I do?  Do I send them out for drug testing?  Do I write them up (with the help of the COO) for violating the “spirit” of the drug policy?  Do I ignore them?  Please help.
 
The Bullard Edge's Response:
You have a boatload of issues, Rex.  We do not give legal advice (call your employment lawyer for that).  However, we can help sort out these issues, which as we see it include:
 
  1. The scope of the drug policy in a marijuana world;
  2. Marijuana speech and reasonable suspicion; and
  3. Disability discrimination.
 
Let’s take these in order.
 
Scope of the drug policy:
We live in marijuana-friendly times.  Following marijuana’s win at the 2016 ballot box, a total of 28 states plus the District of Columbia have adopted laws that legalize marijuana on the state level (it is a mix of medical marijuana and personal use laws).  Oregon has legalized both medical and personal use marijuana.
 
Despite these laws, employers are not (yet) directly impacted by these laws.  Specifically, employers may continue to adopt drug policies that prohibit marijuana and are not required to modify those policies as a form of reasonable accommodation of disability.
 
It sounds like your company’s drug policy with respect to marijuana is fairly strong.  You said that it prohibits the use, possession, sale, and distribution of marijuana on the job or in the workplace.  You also said that it bars being under the influence of marijuana on the job.
 
Marijuana speech and reasonable suspicion:
You asked whether you should send Ned and the others for drug testing or whether you should simply write them up for violating the policy.  Those are good questions.
 
While you did not say this, it sounds like your company’s drug policy probably calls for testing when there is a “reasonable suspicion” that an employee may be in violation of the drug policy.  Reasonable suspicion typically refers to observable, objective evidence or circumstances that could be indicators of impairment in violation of the drug policy.  These are things like observed use, credible reports of use, or behavior that suggests possible use, among other things.
 
In your letter I do not see anything that suggests you have any observed evidence suggestive of impairment.  You said, and I quote, that you “have not found anyone who said they do anything more than talk about marijuana recipes.”  On its own, marijuana speech does not seem like evidence of possible impairment.
 
Of course, you make an understandable leap.  When folks exchange recipes they often use the recipes they exchange.  If Ned and friends are doing that, then this moves from marijuana talk to marijuana use.  The use may be off-duty, but there could be resulting on-the-job impairment.  This is probably a judgment call on whether to conclude that these facts support a reasonable suspicion of possible impairment in violation of the policy.  (Before you make that judgment call, see the “Disability discrimination” section, below.)
 
Given that we have been struggling with the issue of reasonable suspicion for testing, it seems like it would be premature to “write them up” for violating the policy.  You have not indicated that they engaged in any conduct, other than speech (during their lunch break).
 
Disability discrimination:
You said that Ned, Milo, Tammy, and Ginger are all cancer survivors.  If we look at this group differently, it might be that it is more of a cancer support group than a marijuana recipe club.
 
As cancer survivors these four are going to fall within the statutory definition of disabled under both the ADA and Oregon law.  They may or may not have currently active medical conditions; you did not say and likely do not know.  However, the four clearly stood out to you as individuals who have a record of disability.  The bottom line is that they are in a protected class.
 
An employer is prohibited from taking action against an employee because of his or her disability or from treating individuals with disabilities differently than others.  In your letter you said that a number of other employees know about the Tuesday recipe club and “find it cute.”  What is unclear from your letter is whether there are other non-disabled employees who talk about marijuana in the workplace.  If there are, and if Ned and friends are treated more harshly than their non-disabled colleagues, then Ned and friends might be able to assert claims for disability discrimination.
 
The point of this is that sending Ned and friends for drug screens based solely on marijuana speech could be risky.  It sounds like other non-disabled employees may also be talking about marijuana in the workplace and you are not considering sending them for drug screens.  Writing Ned and friends up for marijuana speech also could be risky for the same reason. 
 
I hope this helps you sort through the issues.  Let us know how it goes.
 
Best regards,

The Bullard Edge 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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