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Weed at Work: Legalization of Recreational Marijuana and Possible Effects on Workplace Policies

By Jackie Sudia, AIC, ARM, CRIS
Warren G. Bender Co.
January 17, 2018

On January 1, California joined several other states in legalizing recreational marijuana, also known as cannabis. As with prescription medication, alcohol, or any other substance that affects a person’s cognitive behavior, there are certain actions a person cannot legally do or safely perform under the influence of cannabis (e.g. driving). The ingredient in cannabis products believed to produce a psychoactive effect is Tetrahydrocannabinol (THC). While the psychoactive compound THC is relatively short-lived in the system, the inactive compound produced from metabolizing THC (carboxy THC or THC COOH) remains present in a person’s system for weeks. In a Standard 5 Panel Drug Test, the presence THC metabolites reveal whether the tested person has used cannabis within the prior three to six weeks. This means that, unlike testing blood alcohol levels, testing for the presence of THC metabolites cannot accurately determine if someone is under the influence. A ‘positive’ result for THC metabolites only shows that an individual has used cannabis within the last month or so, not when it was used, or how much.

As an employer, you may be asking how your company might continue to enforce a zero-tolerance drug policy specifically for the use of marijuana (cannabis). Let’s imagine that you have a situation where a manager suspects that an employee is under the influence of cannabis after they’ve returned to work from lunch. How could the manager be sure that the employee actually used cannabis before returning to work? An employee might smell like cannabis because they were near someone who was smoking. Smell is not a reliable indicator, especially given that many products containing THC are not smoked and/or have no odor. There are tinctures, infused foods, vaporizers, and capsules that have no smell. For this reason, learning to recognize the signs and symptoms of inebriation and being alert for unsafe behavior provides a broader and more useful assessment. As an employer, being prepared for changes to reasonable suspicion drug testing procedures could avoid wrongly accusing an employee.

Another scenario to consider is that if an employee uses cannabis while not at work on a Sunday, they are very likely to test positive on a Wednesday; the positive test doesn’t prove that they were under the influence on Wednesday. One school of thought is that employers can’t control the actions of employees while not at work; this has yet to be tested by California courts. That said, unfit actions or unsafe behavior at work are unacceptable hazards that an employer can control. These types of infractions are usually documented in an employer’s Employee Handbook and acknowledged by the employee. If an employee is observed acting in an unsafe or unseemly manner at work, they may be subject to corrective action regardless of whether or not they are under the influence of cannabis.

In addition to legalization of recreational use, ‘medical marijuana’ is still being prescribed by physicians. Just like any prescription medicine that may impair a person’s ability to do his or her job, requiring a note from the prescribing physician with job restrictions while using the medication provides documentation resolving any ambiguity. Providing a detailed job description including the employee’s essential job functions can help support the next action you to take.

It’s important to note that cannabis products are still against Federal Law. Federal law applies to work performed for the federal government or which takes place on federal land and more. Drivers subject to Department of Transportation (DOT) Regulations are not allowed to test positive for THC metabolites no matter what state they are in.

Future court cases in California will eventually shape the way each situation should be handled. How your company decides to deal with these changes will define your company’s future liability, insurance costs, and reputation. Being educated on this subject and developing an action plan will help you protect your business and preserve your working relationships. We recommend you seek the guidance of your legal, insurance, human resource, loss control, and safety professionals.

Disclaimer: The information in this post is provided for general informational purposes only. No information contained in this post should be construed as legal advice from the Warren G. Bender Co. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

Filed under: HR,Property & Casualty,Safety — Jillian Bender-Cormier @ 11:08 pm January 17, 2018

New Tool Shows the Cost of Workplace Fatigue

The National Safety Council (NSC) and the Brigham Health Sleep Matters Initiative have collaborated on a new online tool that can help employers estimate the cost of workplace fatigue. According to the NSC, every tired employee can cost employers between $1,200 and $3,100 every year in expenses related to health care, absenteeism and lost productivity.

Tired employees not only work less effectively, but they can represent a safety hazard to themselves and those around them. Help ensure the health of your employees by following these tips:
• Let your employees know that they should talk to a manager about any fatigue concerns before exhaustion becomes a problem.
• Set up a flexible scheduling system that allows sleep-deprived employees to come in later or make up lost time when they’re well-rested.
• Encourage employees to take short walks to re-energize themselves. You can also consider creating a workplace wellness program to make sure employees get enough exercise.
• Promote good nutrition by making healthy snacks and water available to employees at all times.

Filed under: Health & Wellness,HR — Jillian Bender-Cormier @ 9:07 pm October 25, 2017

The WGBCO HR Hotline

WGBCO HR Services are Just a Phone Call Away!

WGBCO is proud to introduce a new HR service to our valued clients: the HR Hotline. The HR Hotline is ready to assist your business by delivering timely, practical advice and sound answers to your specific HR and employment-related questions. Simply call our toll-free hotline number or submit your question by email and one of our experienced, certified HR consultants will provide you with step-by-step guidance to resolve your situation in a lawful, yet sensitive, manner.

An Experienced Team of Certified HR Consultants On-call

The WGBCO HR Hotline, powered by the California Employer’s Association, is your resource where HR consultants answer questions related to a broad range of HR topics, including (but not limited to):
• Employee Relations/Employee Behavioral Issues
• Harassment and Discrimination Allegations
• Discipline and Terminations
• COBRA Compliance
• Family and Medical Leave Act (FMLA)
• Wage and Hour Issues
• Employee Benefits
• Leaves of Absence
• Performance Management

Get Started Today!

The HR Hotline helps you address employment issues before they become expensive problems. You’ll feel confident and secure knowing that HR support is there when you need it the most.

8:00 AM – 5:00 PM

Please identify yourself as a client of Warren G. Bender Co. when calling.

Filed under: HR — Jillian Bender-Cormier @ 5:46 pm September 22, 2017

Study Shows Average Workplace is Physically and Emotionally Demanding

A new study conducted by the Rand Corporation, Harvard Medical School and University of California, Los Angeles has found that most U.S. employees face at least one form of workplace stress on a regular basis. And, although the study also found that most employees receive support from their employers, workplace stress is common in every job and industry.

Here are some of the key findings from the study:

• Nearly 75 percent of employees report intense or repetitive physical exertion on the job.
• Over half of employees are exposed to unpleasant and potentially hazardous working conditions.
• Nearly 20 percent of employees are exposed to hostile or threatening social environments at work.
• Nearly 50 percent of employees report that they must work on their own time to meet the demands of their jobs.

Physical and emotional stress in the workplace can lead to injuries, illnesses and poor job performance. Contact us today at (916) 380-5300 for employee communications and workplace programs that can help manage stress at your business.

Filed under: Health & Wellness,HR — Jillian Bender-Cormier @ 4:50 pm September 6, 2017

WGBCO Assistance with Workplace Posters

Warren G. Bender Co. is proud to be a resource for our commercial client’s HR needs. Part of that is providing CA workplace posters, for which we start collecting orders in late August (1st poster is free and each subsequent English poster is at a reduced rate of $15).

The media has been buzzing about minimum wage law changes effective 7/1/17, with some HR vendors pushing for “total poster replacement.” The good news is that you don’t need to purchase a new/updated 2017 poster. In fact, most of our clients don’t need to make any changes at all.

Affected clients are those that have employees in Santa Monica, San Francisco, LA City and County and Emeryville ( Those employers are required (as of 7/1/17) to post the new wage orders next to the existing workplace posters. You can find all of the wage orders on the DIR website ( and of course you can always call our HR hotline for more details.

Filed under: HR — Jillian Bender-Cormier @ 4:41 pm June 28, 2017