Human Resources Questions for Dentists: Can employer drug test even though marijuana is legal?

Human resources issues in dental practices can be challenging. These HR experts are here ot help.

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The human resources landscape is constantly changing. Dentists have ongoing questions about how to handle staff issues. Even recently instituted HR rules might need to be updated in a dental practice. Take one of this month's questions, for instance. Legalized marijuana in his state has this dentist-boss asking questions.

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QUESTION: I live and work in a state where marijuana has been legalized. However, I do not want to allow my employees to be under the influence of this drug. If I conduct drug testing, I want to either rescind job offers or fire anyone who tests positive for THC. Can I still do this? Since it’s legal, I’m not sure what kind of drug policies I can have in place.

ANSWER: As of now, when permitted by state law, you are still allowed to test for drugs, including THC, and if you choose, to rescind job offers or discharge an employee for testing positive. Employers also still have the right to control use during work hours, break time, and on the employer’s premises. As of this writing, most courts have weighed in on the side of employers for cases involving medicinal and recreational cannabis and employer policy rights.

QUESTION: My employees are paid for breaks as required by the state’s law. I have asked employees to remain on the premises during this time, but not everyone follows my rules. If an employee leaves the premises during his or her designated paid break, will I be liable if the employee is involved in an accident of some kind?

ANSWER: There are two aspects to consider here—the employee injures a third party, and/or the employee is injured.

As it relates to injuring a third party, being “on the clock” during this time will not be the deciding factor for liability in cases like this. It’s likely to come down to whether or not the employee was actually working at the time of the accident. If it can be shown the employee was working, then the third party could make an attempt to hold the employer liable too.

If the employee is injured, then the employer must consider workers’ compensation. In general, the test for coverage under workers’ compensation is almost always an examination of whether the incident “arose out of” the employment and occurred “in the course of” the employment.

While one might assume a trip out during a break for personal reasons, such as getting food, shopping, etc., is not sufficiently work-related, it might actually be a trigger for workers’ compensation, depending on the circumstances. For example, the employee had to leave the premises to get a meal because there was no other way to access food. This might result in a determination that the incident arose in the course and scope of employment.

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Human Resources Questions for Dentists is provided by Rebecca Boartfield and Tim Twigg of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resources compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit bentericksen.com.


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