By Christine M. Jensen
This information is provided for educational purposes only.  Reader retains full responsibility for the use of the information contained herein.

Last month in this space, we examined Maine’s Department of Labor’s fight for the right to restrict recreational marijuana use. Julie Rabinowitz, Maine’s Director of Policy, Operations, and Communications for the Department of Labor has called upon the legislature there to provide clear, consistent, and easy to follow regulations when it comes to the use of legal marijuana and how it may interact with drug free workplace policies.

Maine’s law allows employers to consider recreational marijuana use as one of the factors in hiring or disciplinary actions. It may not be the sole factor. Strong, well-written job descriptions and job tasks analysis can assist your defense of disciplinary action taken against a prospective or current employee who tests positive for marijuana.

Human Resources Professionals should be reviewing their job descriptions as well as job task analysis for each job description. Often job descriptions are not reviewed or updated on a regular basis. With the every-growing use of technology in the workplace, all job descriptions should be reviewed and updated annually. With this analysis should come the review of the job tasks associated with each job description.

Job Task Analysis

A job task analysis is a process used to collect information about the duties, responsibilities, necessary skills, outcomes, and work environment of a particular job. Six steps are critical to conducting a job task analysis:

  1. Collect information about the job
  2. List the tasks
  3. Identify the critical tasks
  4. Identify the critical competencies
  5. Link the tasks and the competencies
  6. Choose selective and quality rating factors

Employees, managers, and supervisors should be involved in the job task analysis development. It is not a sole function of HR. This process should give you a thorough understanding of the essential functions of the job, the knowledge, skills, and abilities needed to perform the job, and the conditions under which the work is completed.

The job description along with the job task analysis should be utilized in any discussion with an employee or prospective employee about making a reasonable accommodation due to the use of legal marijuana. If an individual discloses the use of marijuana during non-work hours for treatment of a medical condition, an employer must go through the process of determining whether the Americans with Disabilities Act (ADA) applies. If an employer is covered by the ADA (employs fifteen of more employees), they must determine if an individual has a disability. The use of legal marijuana to treat a medical condition is not a disability but the underlying illness, disease, or injury may be.

The next step in the process is determining if the individual is qualified to perform the essential functions of the job, with or without a reasonable accommodation. This is where a well-written, up-to-date job description and job task analysis can assist an employer.

The job task analysis and job duties can form a basis for determining that a particular occupation is a safety-sensitive one. This determination can then lend credibility to your claim that even the use of medical marijuana during non-work hours is inappropriate.

Safety-Sensitive Positions

Safety-sensitive positions are not just the ones that immediately come to mind – truck driver, equipment operator, etc. They also include professional positions which require employees to use discretion to make important decisions which may affect the financial well-being of the company. Accountants, Public Relations Managers, Information Technology Specialists, these are all positions which could be considered safety-sensitive due to the fact that individuals in these positions have access to a company’s sensitive data and information.

New Laws Needed

While strong job descriptions and task analysis can help to protect a company, employers need to unite to lobby their legislators to enact laws similar to the West Virginia Safer Workplace Act. West Virginia has legalized the use of medical marijuana. However, the WV Safer Workplace Act permits employers to test prospective and current employees for drugs and alcohol and to take disciplinary action for positive results provided that the testing was performed in accordance with state law.

Without this, litigation with regard to employment claims involving the legal use of marijuana will continue to grow. This litigation will be a financial burden to companies and may result in splintered case law that is difficult to interpret and follow. A comprehensive law which addresses how the legal use of marijuana interacts with drug free workplace and other employment policies, is a much better alternative.

Have questions about your HR policies, training, or drug-free workplace policies? Contact the Current Consulting Group, LLC (CCG) at 215.240.8204. Our knowledgeable and professional staff members welcome the opportunity to work with you.

(C) 2017 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way full attribution to the author and copyright holder are required.

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