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Emerging Litigation Podcast
Cannabis Laws & Workplace Drug Testing: What Employers & Employees MUST Know in 2026
00:41:56
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- [00:00]
A
Foreign. Hello and welcome to the Emerging Litigation Podcast. I'm your host, Tom Hagee. We're going to start off this discussion with a few grim statistics and I won't give you too many because it gets dark. But According to the addictiongroup.org 9% of full time US workers meet the criteria for substance abuse disorder annually. Look around you now. Some industries, anybody who's worked in hotels or bars or general hospitality industry, things like that in sectors like that is much higher. It could be as high as 19% in some sectors. 40% of industrial workplace fatalities involve alcohol misuse. That's a ton. Did I just laugh at that? I didn't. I didn't mean to. It's one of those laughs you might do when you're uncomfortable. That was that kind of laugh. Estimated cost to employers, if you're going to put a number on it, 81 billion annually. It's a lot of billions. Still, the human impact, that's huge. According to the cdc, we still have a Centers for Disease Control. Last I checked, that was snarky and maybe a political comment. 46 million Americans above the age of 18 had a substance abuse disorder in 2022, 30 million of those were employed. That's a ton. Look around you. Somebody you know. Let's see. Anyway, I won't go on. I could go on from there, but that's depressing and there's no good segue. Let me think. No, no good segue. We're going to talk about this in the context of litigation and employer safety, workplace safety programs. So this is a balancing act between labor and employment and labor and employment law. How can employers have a safe environment, one that respects worker rights and deals with the fact that a lot of drugs that didn't used to be legal are legal. Things are also complicated in the workplace by. Things are also complicated in the number of people now working from home or working in hybrid situations. Some companies are cutting way back on that. But still there's a huge workforce that doesn't go into the office and isn't seen every day. So there is that. And that complicates things. And here to talk about that is Kia Denner. He's a senior labor and employment litigator at Costanji, Brooks Smith and Prophet. He's going to talk about the practical and legal considerations around building a legally defensible safety program in the workplace, one that reduces accidents, protects workers and respects their rights. He's a seasoned litigator. He's been at it for over 20 years. He also co Chairs the firm's cannabis and employee substance abuse practice group. And it may come out too that Kia under the name Kevin was a child actor and actually appeared in some TV series. Got to meet a lot of famous people, including one of my heroes, David Letterman. There was an old running gag by Chris Elliot who was the son of Bob Elliot, for those of you who know Bob and Ray. And if you do, you're quite old. Anyway, it was called Panicky Guy and he made an appearance on there, I believe as Panicky Guys. I don't know, I don't have it straight. But anyway, he was on there Christmas with Letterman. I think he was, maybe he played Letterman's son. I got to get this straight. So there you go. Lawyers doing surprising things that you never thought possible or probable. So that's it. Here's my interview with Keya Denner. Hope you enjoy it. Kia Denner, thank you very much for joining me today. We're going to talk about a pretty, pretty hot topic. You know, I've introduced you as a senior labor and employment litigator at Costanji, Brooks Smith and Profit. And we're going to talk about a pretty important issue in the world of employment and that is what employers can do and employees can do in the world where they are taking medications or, or illicit drugs. But let's talk about that. Some of the statistics I pulled up, One from the CDC said that recently said that 46 million Americans above the age of 18 had a substance use disorder. That was as of 2022, 30 million of those were employed. That's a huge part of the workforce. There are others. The addiction group addictiongroup.org comm percent of full time US workers met criteria for a substance use disorder annually. 40% of industrial workplace fatalities involve alcohol misuse. So anyway, the statistics go on and on. Obviously we all know that, we all know that's a problem. We all know somebody who's had a problem with it. So I just wanted to use that as kind of a backdrop. I don't know if there's anything you want to respond to in those stats first.
- [05:01]
B
No, I think that they're really eye opening. I'm not shocked or surprised necessarily. I've been, you know, I've been kind of, you know, one of my niche areas for probably eight or nine years now has been specifically, you know, the rise of cannabis laws in the states across the country. I think the last time you and I talked on your podcast we for focusing more in on, you know, marijuana specifically. But that first statistic you Gave about the substance abuse disorder. I mean, um, I think a couple, couple things. Like I said, I'm not shocked, right, because we have states that are, that are legalizing it. But also I think that stats are interesting because we're just measuring things now that maybe we hadn't been measuring 10 years ago or 15 years ago. Right. So, yeah, that just kind of popped out to me. I think, I think, you know, that's, that's been happening. Especially when you also look at this administration right now with this kind of this ambient noise around moving cannabis from Schedule 1 to Schedule 3. And those statistics just kind of reminded me of some of the arguments you're hearing now in the last couple months from kind of the pushback, right. From the sheriff's associations and from, you know, the law enforcement types and from the people who have been kind of on the quote, unquote, the. Right. You know, and in all these states, you know, like my state, for example, in New Jersey, we, we've heard this. I mean, you know, you've kind of heard it. It's just they've been drowned out by the, by the folks who are, you know, wanting to legalize the industry. So, you know, and then when you look at those types of stats, you think to yourself, all right, well, you know, was this just always there because the people who wanted to use cannabis were using cannabis? And there really hasn't been a fundamental change in the way employees maybe are using off duty illicit drugs.
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A
Right.
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B
Maybe now we're just picking it all up. Right. And we're learning how to, you know, categorize it.
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A
Yeah, I think that's true. That's true with a lot of things. I wonder, I wonder without knowing anything if ADHD is something like that. I mean, you know, I'm, I'm a formal formally diagnosed ADHD or. But you know, talking to my, my kids were growing up, it seemed like every other kid had adhd, so who knows? Yeah, but go ahead.
- [07:23]
B
Well, I was going to say that that actually reminded me of maybe this is a kernel. Where I just got that from. Was that the whole R junior Autism stuff. And when they're looking at that, right, and they're saying, well look, you know, autism has exploded. And then you have other people saying, no, we're just, we're just more aware of it now. Right. Like A kid of 12 year old 30 years ago was just maybe being labeled as uncooperative or acting out, whereas now they're being labeled with asda. Right, right. And so it doesn't mean that, you know, the vaccines are causing this necessarily. Again, I don't, I'm not an expert on this, but these are the arguments that I was seeing. It's basically we're just picking up more data, you know.
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A
Yeah, yeah. Well, yeah, that's, that's, that's. Sure, it's good. Autism is also quite an industry. Both my daughters work with children with autism. You know, kind of helping them through, through schools and stuff like that. But, but yeah, marijuana is, according to. There was another statistic here from the National Drug free workplace alliance, 4.6 positivity rate among US non safety sensitive workforce, the highest since 2001. Marijuana is the most commonly detected drug. So, yeah, it's catching on big time.
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B
Not, not surprised at all on that. Right. Because. And this is something that I would get from clients a bunch kind of maybe segueing us into, you know, our discussion today.
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A
Yeah.
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B
About, you know, workplace use. And I think, I think, you know, use in the workplace is not so. I mean, we all understand that. No, even, even with the changing laws, like you're not supposed to come to work, you know, impaired on marijuana or, or any opiate or any substance.
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A
Mm.
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B
You know, Even though there's 20 some odd states or, you know, whatever the count is up to now that have job protections for legal off duty cannabis use, it's just like it sounds. It's off duty. You know, it's, it's, it's protecting what people do on their own time, not, not on work time. And if they're doing it on work time, as an employer, you still have the ability to obviously prohibit that. And you know, you want to, you want to make sure that your organization is kind of set up with best practices to try to figure out how to, you know, how to deal with that. But therein lies the rub. Because trying to figure out whether somebody's impaired with cannabis or opiates or any other kind of illicit drugs is difficult, depending upon which drug you're talking about. I mean, alcohol, it's pretty simple, right. Because we can, we have breathalyzers and we can pick up and we kind of, we all know that technology, it's been around for 30, 40 years. Like it's been tested in the courts for the most part. And we understand, understand what a 0.08 means versus a 0.02. And most people actually even understand that they can drink a beer or, you know, they kind of know just kind of intuitively like what their limits are.
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A
Yeah.
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B
When it, but when it comes to other Drugs, it's much more difficult. And some of these drugs stay in your bloodstream for longer or shorter periods or something like cannabis, where the prevailing urinalysis tests are basically only picking up the waste product that had the chemical signature of the, of the cannabis that no longer gets you high. But that waste product signal is binding to your fat tissue. And so when you take a test, it could be picking up use from 30 days ago, for example.
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A
Wow. Yeah.
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B
So it's not going to show that they were impaired at work. They're just going to, it's just going to show that that person used cannabis within some time between 10 minutes ago and, you know, 40 days ago.
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A
Wow.
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B
Okay, so it's hard.
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A
Yeah, it is. So let's, let's talk about managing in the workplace. So what, what are the main workplace risks or behaviors that typically will tell them employer, we need to intervene, we need to evaluate this employee.
- [11:38]
B
Yeah. And I think that this is, this kind of goes to what we were just talking about a little bit. In terms of off duty use versus do your question there is kind of, that's reasonable suspicion, right? That's like, hey, what are we, what can we see as, as managers, as, as an employer, what are we, what are we looking at? And in terms, I would say in terms of drug use, in terms of opiate use or cannabis use, you know, it's generally going to fall into work performance. You got a pattern of bad work habits or work performance. Maybe you'll have a work related accident that was human error and, or not following proper OSHA procedures or safety procedures or operating procedures for, let's say you have a high, low or a forklift and it's kind of like, well, how did, why did that happen? Like that was clear like operator error on that. Or sometimes you're just going to have people coming forward and saying, hey, I think that guy is, you know, on something. I smell something. You know, and the smell note, I just have to say it's, that's a lot harder too nowadays for cannabis because, you know, maybe 20 years ago, I mean, most people know what a joint smells like. I mean, right. It's very distinctive and pungent. And nowadays you have all kinds of delivery methods. You have gummies, you have vape pens that, you know, maybe there's a slight odor, but there's, you know, it's not that same odor of burning, you know, dry weight cannabis. So you know, that's going to be a little bit. But, but, but again, to answer your question, it's basically like do they have some kind of work performance issue, some pattern? Are you looking at a work accident or is there some other evidence out there that the person has used on the job?
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A
Right, yeah, so, so you're trying to, the employers are trying to balance. You want a safe work environment. You don't want people, you know, injuring themselves or someone else. And then you've got their privacy issues too. So talk about that balance.
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B
Yeah. So, you know, look, privacy is certainly important. When I, when I think workplace privacy, you know, and the counseling work I do generally, you know, kind of falls into two buckets in my mind. One is, relates to something we talked about four minutes ago, which is these off duty, you know, people who want to use drugs on their own time. And so I'll use as an example New York. So the way New York dealt with recreational cannabis when they passed that law, I think it was 20, 21 if I remember correctly, they just amended a statute they had on the books, which was prohibiting employers from taking adverse employment action based on lawful off duty conduct. Several states have these types of statutes and they're not limited to drugs. Some say political activity, some say, some. If you look back at the legislative history, it goes back to like smoking cigarettes or like going to a bar or something like that. Right. And so what New York is, they just added cannabis use into their existing statute and they just said so. So I, when I think privacy, that's one way to think about it. It's like what you do on your Saturday night shouldn't like affect your, you know, what you're doing Monday morning in the workplace. And so, and I think that's, that can be a little challenging depending upon, you know, who the employer is too. Because I got, I gotta say, I mean, I, I represent, my firm is based in Atlanta, we're all over the country. But I, you know, we have a lot of clients in the Southeast. And when I talk to those clients, a lot of times they'll say things like, okay, I understand what you're telling me. Like this person can do what they want to do on a Saturday night, but won't that, doesn't that affect them when they, you know, two or three days later, or maybe they're like, I don't know. If it affects them, you tell me.
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A
Right.
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B
And that's usually when I have to say, well, okay, I don't know actually if it does affect them. But all I know is this is what the law says. You're not supposed to be using that necessarily against them. Right. And I would Also say in court, you know, if you're going to get into a battle of the experts, you know, I actually had a. One of my partners was consulting me about a New Jersey case where they wanted to get an expert in there to say that because this person's cannabis reading on their urinalysis results was so high that three or four days later they were still going to be, you know, impacted at work. And I said, I don't. Yeah, you got to grill that expert, because if he's telling you he's going to get you that evidence, that's going to be admissible, you know, in your, in your case. I highly doubt it. I highly doubt it because I, you know, I would have heard. I would have heard of that. Yeah, you're. It just doesn't exist. That doesn't. You're not going to get somebody to scientifically say that somebody's cannabis use three or four days ago is going to, you know, impact. I mean, think about, like, think about it with alcohol, right? You have a, you have a. You have a fun night, you're out on a Saturday night, maybe the next day you're hungover a little bit, but by Monday, you know.
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A
Yeah, the effects do dissipate. Right.
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B
So one other thing. So I said there was two buckets. One in my mind is that. And then the other one is when you talk privacy, you talk just generally about the Americans with Disabilities act, the ada. And generally what that says is that, you know, when you're talking about medical information, it has to remain confidential, and you have to store that information in a separate file. You want to keep that under lock and key. But that just kind of underscores that these kinds of. Just like somebody's, you know, genetic proclivities and anything, right. They. They're going on fmla, they have a serious health condition, like all of those types of diagnoses, or somebody has a disability, they've asked for a reasonable accommodation, and now we have to engage in the interactive process with them. And as part of that, we're able to get some medical information from their healthcare provider. We want to keep all of that information private for the most part. Do people need to understand that this person is entitled to an accommodation of what it is? Of course, managers and supervisors will need to know that. Do other employees, coworkers, need to know all those details? No. Right. And so that's the kind of stuff that when we do training for managers and supervisors, we really stress that. That, that's gotta be. That's part of the Privacy umbrella. Right.
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A
Okay. Well, we'll talk about the components of a safety or assessment program that'll comply with the ADA and the Rehabilitation act and then talk about where employers often go wrong when trying to create safety policies.
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B
Right. So, you know, I think when you talk about safety policies, that's a, that's a pretty big, again, to use the umbrella analogy, it's, you know, there's a lot going on there that could be a lot of different things. It could be OSHA type considerations, generally duty to keep the workplace safe. I think in the context of what we're talking about today, you know, we'll go back to these disability related inquiries or medical exams, which those are two terms of art under the ada. Right. The ADA basically puts some limits on what employers can do when they either want to ask somebody to submit to an exam or they want to ask them about their health conditions. And so your question was, you know, what, what, what should we really be looking at if you want to build a good program. Right. That's compliant. So, you know, this is just ADA basics. When you're talking about medical inquiries, it kind of breaks it down into three stages. Right. And they say first stage, which is, you know, prior to giving somebody, this is an applicant, a job applicant, prior to making them an offer, you basically can't ask anything about their, you know, their, their disabilities or, you know, make, make those types of inquiries, even if it's related to, you know, the job at that point. Now, once you make a conditional offer, now you're able to make those types of inquiries, you're even able to ask them to submit to a medical exam. The only caveat there is you have to make sure you're doing it for everybody. So everybody in that same category has to be subject to the same rules or requirements once the person becomes an employee. So once you've hired them, now the major constraint on, you know, medical examinations are, is that examination job related and consistent with business necessity. What does that mean? It basically means that the employer has to have some type of reasonable belief and that's gotta be based on objective evidence that the employee will be unable to perform the essential job functions or would pose some type of direct threat to, because of their medical condition. So that's the standard, that's the, the, you know, that's the standard when we're building out these programs and I'm working with employers like, hey, you know, if you guys want to get into this stuff, you have to make sure. And it's basically, look, it's Gotta be job related, right? So you can't just ask people willy nilly, you know, submit to a medical exam. There's gotta be some basis in what does this person do? Or like I mentioned a few minutes ago, if they ask, come forward and say, hey, I have this, you know, I have asd, right, where we were talking about before. I have, I need something, I need some, I need a reasonable accommodation, essentially, right? They don't even have to use the words reasonable accommodation. They just have to come forward and say, I need something to help me do the job. Then at that point, of course, the employer can ask for additional information. They can ask for medical facts, they can ask for what they need in order to comply with, with the law. So, you know, kind of what, when you're building out the program, you know, that's what I would say. You want to really look for any, any safety program, any assessment program. By the way, I don't even really want to get too far into, I mean, there's a whole nother topic of like screening tests. But you know, I don't, we don't really need to get there. It's, but it's kind of the same standard. It's like if you're going to, if you're going to make this test, is it job related? Right? Is this type of a test job you remember, right? Like a cop, a police officer, they'll have physical requirements. They got to do this, right? It's got to be related to the, related to the job. So I think. Now the second part of your question was where do they go wrong, right? What's the pitfalls here? I mean, I guess what I see a bunch is when the questions that they're asking aren't really, you know, so related to the job. They're tethered in there, you know, and then confidentiality, I think is another major pitfall that we see all the time, is that people are not, I mentioned a second ago, you're supposed to, any, any of this information you get, you're supposed to file it away separately. You don't put that in with their job application. You don't keep that with their personnel file. You're supposed to put it into a separate medical file. And technically you're supposed to keep that under lock and key. So like HR has that. The supervisor, the person's boss shouldn't have access to that. So that's another area where people, you know, businesses and employers can go wrong.
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A
Okay, we'll talk about documentation, we talk about accountability. What does that look like in practice for employers and employees. And how should things be documented?
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B
So when I train supervisors and managers on this, like, documentation, I think I have a slide that just says documentation, Documentation, documentation with explanation points, bold highlight, right. It's like, you know, and that's me as a litigator, right? Because when I put my counselor hat on and I try to teach employers how to do it, I'm also thinking to myself, all right, well, if in a year from now I'm in a court, I'm in court, and I have to prove, you know, that, for example, this was consistent with business necessity or that this person actually could not do the essential job functions even with whatever they were asking for. How do I know that? I mean, so it has to be documentation. Documentation is. Is huge. And, you know, and training. Training, I mean, those are the. Those are the big things. I do training for some of. Some of my clients that I do tons of counseling work on this. They have me come in once a year and just meet with their managers for like a whole morning, sometimes even a whole day. And we just like, walk through the issues. Right? And you. You let it open. You have your. Your supervisors ask questions. But they are the supervisors and the managers here. They're the front lines. They're the ones that a lot of times are getting the questions from the person who has, you know, the disability or the person who has the issue with drugs or whatever it might be. Like, they need to know. They need to have that light bulb go off, and they need to understand that, you know, this is same thing with, like, sexual harassment. Like, saying nothing is not really the option. And by saying nothing as a supervisor, you're putting your own tail, you know, at risk.
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A
Yeah. And that's in my experience as a manager at a large corporation, they went from great lengths to make sure that we were all consistent in how we. As best we could be consistent in how we handled these issues.
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B
Right, and how do you do that? You make sure that everybody. All the managers know what the policy is, and you all get trained on the same thing, and everybody understands, like, when this happens, this is what, you know, you're supposed to do.
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A
Right.
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B
In the. In the. In the marijuana context. Right. Like, I. I give employers a reasonable suspicion checklist, and I train managers on it. Hey, if you think that that person is impaired at work, what should you do? All right, well, here, use the form. First of all, get somebody else. Have two people make the observations, write it down, document it. You got a video, save the video. You know, Stuff again, as a litigator, you're thinking, like, if I have to prove this down the road, what do I want to see? And then, you know, take your observations, put it into form, email the form to hr. Right now you have an email record of it. So those types of things, I mean, they seem common sense, but it's, you'd be surprised how many times you get to the point where somebody's calling you saying, hey, we got to fire this person. I'm saying, all right, well what does it look like? What do you got for me? And I got nothing.
- [26:27]
A
Yeah, no, I, I would not be surprised at all, having worked in companies. Right, so let's, let's move on to the last couple of items here. Walk us through what proper fitness for duty process should look like. What is that and what does it look like?
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B
Yeah, so this kind of dovetails a little bit with, you know, the ADA discussion we were having. No, when, when we say fitness for duty, basically it's a medical inquiry. Right. So it has to jive with the rules we talked about before. But a lot of times, as you know, as a term of art, a fitness for duty certification, it's going to be usually in the context of, for example, somebody who's been out on fmla, so they've been out for their own health condition. And the FMLA regulations specifically allow employers to get a fitness for duty certification before they can return to work. So that's kind of a built in process. And if you use the Department of Labor's forms, you know, the 381, 382, 380, you know, these are the DOL FMLA forms, they kind of have sections in there. Check the box if you require a fitness for duty certification. So, you know, one thing when we're talking about leaves and then ability to come back to work is you do want to make sure your paperwork is in order. Because the regs, while they say you're allowed to get a fitness for duty cert, they say you have to tell them that you're going to require that. Right. Now the good news is if you just use the government forms, all that secret sauce is already in the form. But if you don't use the government forms, then okay, the other time we see fitness for duty a lot is also with the ADA accommodations, you know, it's, it's kind of similar idea. Can this person do the essential job functions and are they ready to come back to work with or without an accommodation? And you know, what do we need to see in order to make sure we're good with that. I mentioned before, direct threat, right. Like as an ADA concept, you just want to make sure that somebody can come back, they can do the essential job functions. They're not going to put themselves or coworkers or customers or anybody else, you know, at risk. And I will say that in the context of drug use, because that's kind of been our underlying theme here today. Sometimes if you have a policy about substance abuse policy, which I highly recommend, if you're going to be in an industry where you're going to think about drug testing or you just want to have a good safety program, you know, you might have in your policy something that says, you know, hey, if you voluntarily come forward and you say that you want to get treatment, we will work with you on that. However, if you go and get treatment, we're going to subject you to a test, you know, a post treatment test. If you want to go, go to rehab, that's great. We love that you're going to go to the rehab and this is how we're going to do it. Some people call it a last chance agreement or whatever it is. Right. It's going to have in there. When you're ready to come back, we're going to test you and then we're going to periodically test you for the next year just to make sure. And you're allowed to, for the most part, you're allowed to, to do that. So.
- [29:38]
A
Yeah, but, so I just to kind of tie this up, you know, I know we have, I've got limited time with you, but I just wanted to tie up, if I could do it, like, what are some of the common misconceptions that employers have and common misconceptions employees have and include in that legal drug use? Yeah, yeah, because you talked about it. I mean, you can, you know, just because you have a prescription for something doesn't mean you can come to work impaired. But talk about that. What are some of the misconceptions on both sides?
- [30:07]
B
Well, I think that's the big one. You just hit the nail on the head is, is with, what does it mean when you say prescription medication? And I, I gotta be, I mean, look, I'm, this is my area of law, right? So I, I know, but even if I was a late, like if I read somebody's policy and it said prescription drugs, but I happen to live in a state or a city that allows, you know, legal cannabis, for example, or, you know, I should say medical cannabis, right. So I, I have A doctor basically, quote, unquote, I have a prescription for cannabis. So how does that work? I mean, so when I read the policy. So one thing I will say again, make sure your policy is clear. So when we write policies and we talk about legal prescription use, I always make sure that I distinguish that from marijuana or medical marijuana or medical cannabis use. And I make sure the policy says, hey, by the way, when we talk about legal prescriptions, we're not necessarily talking about cannabis. This is how we're going to deal with cannabis. And then that's going to be based on wherever they are.
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A
Right? Yeah. Because you've got employers with employees all over.
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B
Right. And those are the most challenging.
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A
Right.
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B
So when you have an employer that operates in 35 different states. So, you know, I would say misconceptions on the employer side, number one misconception is that they can do this in a one size fits all manner.
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A
Right, right.
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B
That's a problem. Like you, you can't be thinking like that. And you'd be surprised. Some of the biggest employers in the country, I think, I think most employers are, they understand now, but even a couple years ago, you still were having big employers, sophisticated employers who were basically just wanting to use their kind of like one size fits all.
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A
Yeah.
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B
Substance abuse policy.
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A
Sure.
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B
And you know, I understand most employers would love to be able to do that. Nobody wants to have to hire a Lawyer to do 35 different addendum to your handbook.
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A
Well, you'd like that very much.
- [32:14]
B
Well, I, you know, hey, but, but that's just the reality. I mean, until this becomes cannabis becomes, you know, the federal law changes and that's the only way it really can happen. Right. Because you're going to have the supremacy clause and then you're just dealing with it on one level. But it's not that now. Right now it's just federalism. It's just every state with their different approach. And therefore, if you are in 35 different states, you really have to make sure. Now look, you're not going to have to have 35 different policies. You are going to have to go through though, and pick out those eight or nine or ten where you got to be careful. Danger. Right. And then you have to figure out how. By the way, there's some states that forget about cannabis. They just say if you're going to test people, if you're going to do drug tests, here's our laws and you have to follow these 20 different steps. So like Iowa, you know, has that. Right. So. And again, it doesn't really, it's not really a cannabis issue. It's just like if you wanted the drug test, this is how you're going to have to do it. So I would say that's a, that's a common pitfall or misconception is that you can do this in a one size fits all. Going back to the prescription, you know, the prescription thing. I think another problem sometimes that employers, you know, kind of deal with is that they'll have a policy that, you know, says hey, you have to tell us all of your prescriptions. You can't do that under the ada. You can't, you can't ask for, hey, give us all your legal prescriptions if it's not job related.
- [33:52]
A
Yeah, and that goes for a lot of things. I was just, I just had a podcast with another employment lawyer. It's like she mentioned that there was an employer who was asking people's religious affiliations. Yep.
- [34:02]
B
Now, right now if you have a legitimate like non discriminatory reason for that or you have a job, you know, it's, if it's related to the job, if somebody says hey, I gotta work on the Sabbath. But you're like, hey look, this is an air traffic control position and you need to like. Right. So it's just kind of like common sense stuff. But, but that is something that sometimes, sometimes you see again, job related is the key when you're asking about, you know, prescription medication. That's generally how you want to do it. And the EEOC guidance kind of goes through this. They give some helpful examples about it. It's kind of the ones you would think about. Police departments, airline pilots, fire departments, you know, like those types of things where somebody who's using even just like you know, pretty strong antidepressants or anti anxiety that might have certain side effects, you know, those, those jobs.
- [34:53]
A
Psychotropics will be next, right?
- [34:55]
B
Yeah, well, absolutely. I mean you're starting to see, I mean this is starting, this is relatively new in the last couple years, but you're starting to see now psychedelics becoming, you know, a little more mainline, I will say kind of zooming back out. You know, I mentioned before about this administration and how they're treating cannabis and this idea whether it's going to go from schedule one to schedule three. It's really interesting. I don't know, I don't even think President Trump knows what his views on it are. He mentioned back in August that they were going to come out with something in September. Here we are, it's now almost December. So in case you haven't noticed, there's a lot of other things going on in the world.
- [35:35]
A
I have no idea what you're talking about.
- [35:37]
B
Competing. Competing for his attention.
- [35:41]
A
No, I haven't seen that. I have to have to get a newspaper. Yeah, check it out. Yeah, no, I know. Yeah, that's right. And yeah, but it is funny how some of these things become, I mean it's a whole other subject about politics in the workplace because, you know, and it's completely off topic, I realize, but I mean, as a journalist I was trained, you know, you only add something to a story if it's relevant to the story. You know, like that was the case with race. You don't, you know, you don't identify somebody as this race or that race unless it's relevant to the story. And the same. But now with, like, with judges, people say this was a, this was a Trump appointee, this was an Obama appointee. You know, so, so things change quite a bit. And I do wonder. That's a whole separate podcast. Maybe we can do that is, you know, politics in the workplace. You know, if people can look at your Facebook, you're going to look at my Facebook. You can see exactly where I stand, you know. You don't want to hire me based on that.
- [36:37]
B
Yeah, absolutely. Yeah, we, that was a, that was a pretty hot topic back in 16 and 22. I mean we were getting as employment lawyers, we were obviously so charged and everyone's posting and everyone gets really, really invested and upset about that. But you know, again, just kind of going back to the drug thing and, and, and illicit drugs and I guess maybe even tying it back to what you started off our podcast with, you know, these stats, I still think they're. When it comes to politics and the way we are, you know, regulating it, it's still way up in the air. I, I mean I think certain administrations like within, within the, you know, within a year or two, they're flip flopping and changing. How does this person in the administration think about it? We don't know. What are we going to do? How does this person think about. What does the president think about it? I mean, we had that with Joe Biden too. It took by, you know, Biden really wasn't a huge cannabis proponent and that goes back to, you know, 40 years ago, like where he came from, even though his administration was probably very much, you know, in line with the green wave type of movement.
- [37:53]
A
Yeah, a lot of stuff is changing rapidly these days. You know, the social norms and mores. I Mean, Obama was. Wasn't a fan of abortion. And then I think it was abortion or was it drug use? Anyway, he. He changed his position on that. And, you know, people are going to do that over time. But, but with drugs in the workplace, I mean, it just, you know, just me saying that just so that sounds crazy. Who would want that? But you, but you said the thing. You know, a lot of it's common sense. I see a guy sometimes, I saw a guy a few weeks ago, he's out taking a tree down. The top of a tree down. He's way up there, way up there. I was just like, what is he doing? And there's a giant crane, you know. Right. He can't be high, man. I mean.
- [38:35]
B
Right, right.
- [38:35]
A
I mean, I mean, not literally. Well, you know, that's common sense for him and his coworkers.
- [38:41]
B
Right. And I think that's probably one of our key takeaways here, is that we can talk about all these things and medical inquiries. And, you know, by the way, I should also just say, I didn't say it before, but when we talked about the ADA and medical inquiries, illegal drugs are not part of that. Right. So you can test. Right. You can make these inquiries about illegal drug use outside of the scope of the ada.
- [39:09]
A
You don't have to accommodate for illegal use.
- [39:11]
B
Correct. And one of the interesting things is if, if, if it ever gets off Schedule 1 completely and gets off the schedules, that could change. Right. That part of it could change. And the ADA jurisprudence around marijuana and cannabis, that will change when that happens. Not necessarily if it goes to Schedule 3, but if it ever gets just completely off the schedule, descheduled, then we'll start to see some of that. And I think as employment lawyers, we can start to figure out what all that means, you know, for all the case law that we have. But, but, but again, I think the key takeaway here is, look, none of these laws, no states, no, no employer that you work with in the United States is ever going to have to let folks be impaired on the job. Right. That's. That's just the key takeaway. It's like, we're never gonna have to do that. Right. But the thornier issue and the hard ones to predict, depending upon where you are, is what happens on a Saturday night. You know, how does that impact Monday morning?
- [40:15]
A
Right. Yeah, yeah. And if you are having wild Saturday night, don't put it up on the web.
- [40:20]
B
Right, Exactly.
- [40:22]
A
Think. I think the younger generations are. Well, my generation, I'm a late boomer. I'm like, thank God there wasn't cell phones and stuff. Many of us say that because we were all goofballs. And some of those pictures would be. I would not want them. But, you know, my daughters, now, they're in their 30s, they grew up with. Wait a second, I don't want to put this on here. They kind of. They got more savvy about it.
- [40:43]
B
Yeah.
- [40:43]
A
Because they were. They learned the hard way from thing. Even MySpace kids were attacking each other. Don't put stuff up there.
- [40:48]
B
It's for.
- [40:49]
A
It's forever.
- [40:50]
B
Yep. You can't put. You can't put drug use on there. And certainly you can't put anything, you know, associated with your company. You know, also when you're posting, you know, certainly if you're posting anything, tagging your company, tagging, things like that, even. Even with drinks, you know, I would steer clear of that. You know, obviously, the world we live in right now, everything can be, you know, if. If the Eye of Sauron, you know, finds you, like, and, you know, the. The focus comes on to you, you don't want that kind of attention. And as unfortunately, as. As we've seen, you know, whenever that does happen many times, the next thing you're going to read about within 12 hours, 24 hours is, oh, yeah, now that person just got fired, you know, so.
- [41:35]
A
Yeah, that's good. Well, thank you very much, Kia. I think we hit everything. We certainly got a lot. And thank you for your patience and setting up the mic and everything. You sound great.
- [41:45]
B
Yeah, no problem. I enjoyed it.
- [41:52]
A
Sam.