The National Institute on Drug Abuse - Essay Example

Introduction The National Institute on Drug Abuse defines marijuana as “dried leaves, flowers, stems, and seeds from the hemp plant, cannabis sativa.” It contains mind-altering chemical delta-9-tetrahydrocannabinol (THC) and other compounds. Marijuana use has attracted considerable debate in the U.S as to whether it should be legalized or not for recreational as well as medicinal use. Since 1996 twenty states and Washington, DC ave legalized marijuana for medical use and Colorado and Washington have legalized its recreational use since 2012. However, marijuana use continues to be an offense under the federal law schedule 1 hence it is an illegal and controlled substance. With increased medical marijuana legalization, questions are propping up as to how this would affect the workplace bearing in mind that most of those who consume it are worker. Most especially, human resource managers are concerned as to how the law would impact on the employment hiring process. The complexity of the matter is increased by the fact that those allowed to use marijuana for medical purposes also have a disability which is protected under the Americans with Disabilities Act and by the Civil Rights Act. Failing to hire such individuals in such states could be considered as a form of discrimination but employers get reprieve in that the Federal law does not offer protection for such cases. As such the issue is very complex needing careful consideration by employers especially in formulation of their zero-tolerance policies or maintaing a drug-free workplace. This essay will present the views of human resource managers on how medical marijuana impacts on employment hiring process. The two human resource managers whose views will be presented here are Mr. Xi Zhao of Uterpy Music Company and Mr. YiChao Wan of Lucky Garden Chinese Restaurant. Uterpy Music company is headquartered in Boston, Massachusetts one of the states that legalized medical marijuana in 2012. It is a social media company (Internet industry) and the largest social website for people who love music. It aids musicians with networking; collaborating and also getting noticed (Uterpy.com). Lucky Garden Restaurant in the hospitality industry is located in Melbourne, Florida whose medical marijuana bill became law in June, 2014 after being signed by Governor Rick Scott. The company offers catering services and provides wide array of Chinese dishes. The two human resource managers were interviewed using a questionnaire containing wide range of questions as to how the law impacts on their hiring practices. The information obtained is useful in drawing a picture and gaining useful insight into how companies are affected by the law even as more states continue to legalize medical marijuana. The interviews revealed that this is still a gray area that needs further consideration and consultations with legal experts if companies are to avoid legal litigations for discrimination in hiring by not adhering to Equal Opportunity in Employment laws enforced by Equal Employment Opportunity Commission (EEOC). Before delving into how medical marijuana impacts the hiring process, it is only plausible to understand what the law is about and who is covered by such laws. The Massachusetts medical marijuana law allows qualifying patients with certain defined medical conditions or debilitating symptoms to obtain and use marijuana for medicinal use (Klein, Massachusetts law). Debilitating medical condition in this case ccording to Klein means: cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohns disease, Parkinsons disease, multiple sclerosis (MS) or any other debilitating condition certified by a physician and must be in writing. The qualifying patient on the other hand is a resident above 18 years of age who has been diagnozed by a physician as having such a condition and is issued with a registration card by the Department of Public Health (DPH). The law as in other states does not require modification of employment practices, drug-free workplaces or drug testing policies. It also does not make allownace for accommodation neither permit an employee to use marijuana in the workplace or to be impaired at work. Moreover, employers are required to comply with Department of Transport (DOT) regulations wereby certain drivers are subject toa drug and alcohol testing. The law was passed in 2012 making Massachusetts the 18th state to legalize medical marijuana. In Florida, medical marijuana is still illegal even if the bill was signed into law as legislators are yet to enact the law (Office of National Drug Control Policy, state laws). Those who qualify for medical marijuana aere those suffering from cancer or severe and persistent muscle spasms and are expected to take low-THC of 0.8% or more than 10% cannabidiol but are not issued with ID card like in other states. The medical marijuana laws vary from state to state. For example, only five states (Arizona, Delaware, Illinois, Minnesota and Washington) address workplace drug testing hence protecting workers from losing their jobs for testing positive unless impaired during working hours (Berger, nap). Ten states do not mention drug testing while five have provisions against discrimination but no drug testing provisions. The ten states are Alaska, California, Colorado, Columbia, Hawaii, Massachusetts, Nevada, Oregon, Vermont and New Mexico. This makes it hard for employers especially those operating interstate companies as they apply different laws or policies. The application of law becomes complex especially as courts permit employers to “fire employees who test positive even if they have a disability that they are treating with medical marijuana, even if they did not use at work, or work under the influence of marijuana” (Shilling, 3-152). In this case, federal law takes precedence over state laws although in most cases it is the state laws that get enforced by state law enforcers since federal law enforcers do not have enough resources to enforce such laws in every state. The much debate about marijuana results from the impact it has on the health of consumers just like other illegal drugs such as cocaine although it is also useful in relieving pain. Some people believe it should be lagalized like tobacco and alcohol. It is consumed through eating with other edibles, smoking, drinking or inhaling. According to the National Institute on Drug Abuse (NIDA), marijuana use is widespread among the young people and has short and long-term effects on the brain. Absorption of THC in the bloddstream overactivates parts of the brain making users to feel ‘high.” It also alters the senses, sense of time, mood changes, impaired body movement, impaired mememory and makes it hard for the user to think properly or engage in problem-solving (NIH, Drug facts). The long-term effects include hindrance to brain development leading to loss of mental abilities. It also causes difficulties in breathing, increased heart rate, hallucinations, paranoia, depression, anxiety and in some cases, suicidal thoughts. Moreover, it is also linked with increased absenteeism in workplaces, increased likelihood of accidents and injuries. As such, reporting to work high on marijuana can be detrimental to the organization in terms of lost productivity and can also compromise the safety of others especially in the restaurant industry where employees deal with dangerous equipments such as knives, steamers, and flyers. Even as states continue legalizing medical marijuana, is upon the employers to decide whether to adopt a zero-tolerance policy or allow such use bearing in mind the effects it has on the health of such employee and the danger it poses to others. This decision is especially crucial in the hiring process as it determines the quality of employees an organization has and consequently, organization success. Recruitment, selection and placement of individuals on jobs is an essential process in the organization as it is the key to employee retention and improved productivity. It begins with job analysis to determine the knowledge, skills and abilities (KSAs) required for job performance and also job description and person specification. Once the skill gap has been established, then the human resources decide whether to recruit inetrnally through employee references or externally to incorporate new blood and encourage creativity. Whatever the case, the hiring process should be handled with caution to avoid discrimination litigations and to get the best employees suited for the job. The next stage in the process after developing a job description is to invite applications from potential candidates taking into account employment laws such as American with Disabilities Act (ADA) and other protected characteristics such as age, religion, sex, sexual orientation, national origin, or medical condition (Gartner, Chernin & Gusha, 1-19). Both Zhao and Wan admitted that developing applications and interviewing potential candidates is where the problem as pertains to medical marijuana comes in. The law prohibits employers from asking questions regarding the prohibited characteristics such as medical condition yet they are liable for negligent hiring in case such workers cause damage or endanger others. For example, employers are not supposed to ask hospitalization history, how many days they were sick last year or what prescription drugs they are taking (Gartner et al. 1-25). Carrying out background investigations, pre-employment medical examinations or reference inquiries before a job offer is also prohibited. However, a test to detect illegal use of drugs is not considered a medical exam under ADA hence it is not a violation of the law. The problem for Wan is that restaurants rarely go through a lengthy hiring process to even carry out such medical exams. “Us in the restaurant industry depend on quick hires, based on need to immediately fill a demand,” he says. It is therefore likely to violate ADA. The ADA requires employers to offer reasonable accomodation to those with disabilities such as accessible buildings, modifing or purchasing new equipments, and changing work schedule. Legalizing medical marijuana poses a problem for human resource managers as they do not know if they are required to offer accomodation to such individuals bearing in mind that most of them have a disability. For Wan, “it all depends on negotiations with the concerned employees or applicants.” For Zhao who is in the social media industry, everything they do is publicized hence careful consideration is required. Although the Massachusetts state medical marijuana law does not require employer to accommodate a medical marijuana user in any way, even if he or she possesses a registration card (Klein, nap) Zhao acknowledges that “an intercative process is crucial to adress need for accomodation provided it does not result in undue hardship for employer.” Before offering a job to an applicant, the employer may ask the candidate if they will be able to perform the job with or without accomodation and agree on such issues beforehand (Shilling, 3-152). The employer may also ask if the employee will be able to perform certain functions if related to the job. The courts have always held that ADA does not protect medical marijuana users or provide them with right to accomodation since marijuana is still an illegal and controlled substance under federal law. Another issue in hiring process is conduct of background checks, reference inquiries and drug tests. These are done after a job offer and require authorization from employee. Job references can be from a previous employer and the recruiter must be careful what kind of questions to ask to avoid violating the law.They can also be from drug convictions or social media. Background checks could be from criminal records or consumer reporting agencies. The state law does not require employers to permit users to possess or use medical marijuana at workplace even if it is to treat a disability (Klein, nap). This gives a headache to employers as to whether to change their drug policies or drug testing policies or continue with their zero-tolerance policies. Reconciling such policies with patient’s rights to get high is challenging. Besides, would it be legal to ask candidates if they use such drugs off-site? For Zhao and Wan, “it all depends on the employer.” “Massachusetts is an at will state” claims Zhao. As such, the employer is free to either restrict or allow marijuana use but this can have positive or negative effect on hiring. In the music industry which comprises mainly young people, allowing medical marijuana use could be crucial in attracting talent as young people like freedom. However, for employers on federal contract or grants, a drug-free workplace is a must as per the Drug-Free Workplace Act of 1988 (U.S Department of Labor). The employer need not change drug policy but it is essential to change to make employees aware of the policy. In the restaurant buisness on the other hand, Wan argues that it is tricky to accomndate use in its drug policy. While this could attract young and creative talent, allowing employees to work while high could be dangerous due to the type of equipments they handle such as industrial flyers for chefs. Besides, customers or employees who fear influence of such drugs on their families could shun away thus it is a delicate balancing act. Shilling argues that explaining exactly why the drug tests are needed and if they are applicable to all holders of such positions is vital to avoid harming recruitmnet (3-152). Also while formulating a drug policy, it is vital to inform the potential and existing employees that drug tests can show up positive after weeks or months of consumption since it stay long in the bloodstream and also the consequences of testing positive (Berger, nap). The employee has right to fire or refuse to employ an employee found positive through drug testing even if using medical marijuana since it is illegal at federal level. State laws also do not permit usage in workplace or impairment just as drunken employees are not allowed in the workplace. Conclusion The medical marijuana law does not impact the hiring process in a great way. This is due to the fact that U.S is an ‘employment at will” country hence employers and employees have the right to terminate employmnet at their discretion. Moreover, even though 20 states have legalized medical marijuana, it still remains illegal under the federal law hence employers are safegurded against discimination litigations based on medical marijuana. Even the states that have medical marijuana laws are not clear on its impact on employment practices and do not give much guidance on that. Employers are not obligated to offer reasonable accomodation to users, permit an employee to use marijuana in the workplace or to be impaired at work, and can continue including marijuana in their drug testing and fire those found positive regardless of whether they are on medical marijuana. It is therefore, left to employers to decide whether to embrace the law or not although they risk being sued for discrimination. However, a clear and comprehensive policy should be formulated and communicated to applicants and employees through job applications. Having employees sign an acknowledgement to confirm understanding such policies is crucial for future references. All said employers who want to attract young and creative talent may use this opportunity by relaxing their drug testing policies but on the other hand, they should be careful not to scare away potential employees and customers who fear for their families being influenced by such a policy. Works Cited Berger, Jesse. Legalized Marijuana: How It Could Affect Employment Screening. Pinkerton. March 14, 2014. Web. April 5, 2015. http://www.pinkerton.com/blog/legalized-marijuana-affect-employment-screening/ Gartner, Lwrence J., Chernin, Ethan and Gusha, Stefanie M. Hiring Guidelines and Pitfalls. In: David, Payerwold (ed). Advising California Employers and Employees. USA: CEB, 2014. Print. Klein, Daniel B. The Massachusetts Medical Marijuana Law and the Workplace. Lawyers Journal. June 2013. Web. April 5, 2015. http://www.massbar.org/publications/lawyers-journal/2013/june/the-massachusetts-medical-marijuana-law-and-the-workplace National Institute on Drug Abuse. Drug Facts: Marijuana. NIH. April, 2015. www.drugabuse.gov/public/drugfacts/marijuana Office of National Drug Control Policy. Marijuana Resource Center: State Laws Related to Marijuana. Web. April 6, 2015. Http://www.whitehouse.gov/ondcp/state-laws-related-to-marijuana Shilling, Dana. Lawyers Desk Book, 2015 edition. New York: Wolters Kluwer, 2015. Print. U.S Department of Labor. Drug-Free Workplace Act of 1988. www.dol.gov/flaws/asp/drugfree/requirement.html Read More