Continuing education platforms are a great way to develop employee skills, boost morale and improve recruitment efforts.
Employers are often on the hunt for job benefits that they can add at a low cost to improve recruitment efforts and boost employee morale. When these benefits also positively impact productivity, they’re a win-win for worker and employer.
No benefit does a better job at checking all these boxes than professional development opportunities for your employees. These include things like online learning platforms, paid junkets to seminars and workshops, and even employer-sponsored schooling. Educational opportunities allow employees to grow their skills and pursue their professional goals, while also integrating what they’ve learned into their day-to-day responsibilities in the workplace.
What are some popular professional development benefits?
Professional development opportunities come in many shapes and sizes. They include online learning, workplace-hosted events, offsite seminars and workshops, and membership in professional organizations. Professional development can also include employer support for schooling costs in some cases.
Today’s employees are unmistakably anxious to learn and get new skills, and the appropriation of innovation to empower employees’ learning enables associations to lift worker bliss while enhancing their capacity to hold ability.
Many employers also offer access to online learning platforms, such as Lynda or Degreed. These platforms allow employees to guide their own learning with preset pathways, as well as for managers to create their own pathways that could help employees grow in their organizational roles. They also include reward or gamification opportunities to further incentivize learning.
According to the 2017 Employee Benefits Report from the Society for Human Resource Management (SHRM), the most common types of educational and professional development opportunities employers offer include professional organization memberships, offsite events, and workplace training or courses.
Another common professional development benefit is tuition reimbursement. A survey of 2,000 employees conducted by Better Buys found that 53 percent of respondents had access to tuition reimbursement programs sponsored by their employer. Employers can obtain a tax write-off for up to $5,250 of educational assistance benefits every year.
Regardless of how you plan to make continued education a part of your business growth, you need to do it. Investing in your employees is one of the best ways to show you care about them personally.
How does professional development benefit employers?
There are three major ways professional development opportunities come back to employers. Professional development benefits help employers recruit new talent, retain their existing employees, and cultivate skills that will be used for the benefit of the company.
Whether an employee stays for decades or not, offering continuing education is still worth it. It is a nice perk for recruiting that shows the company cares about the employee’s growth, and even if the employee is only there for a couple of years, it’s better to have more highly skilled employees for the same price.
According to SHRM’s report, 48 percent of HR professionals cited training and education programs as the most effective recruiting tool at their disposal.
The Better Buys survey found that 78 percent of respondents currently have access to professional development, while 92 percent of respondents believe access is important or very important. According to the survey results, employees with access to professional development opportunities are 15 percent more engaged in their jobs, which led to a 34 percent higher retention rate. This means those employees are not only more productive day to day, but less likely to leave their positions, which saves employers an average turnover cost of 6-9 months of an employee’s salary.
Hiring is expensive and time-consuming. It is often easier and cheaper to retain your own talent, or hire from within. Training or up-skilling employees opens an additional talent pool for the employer that they already had.
Professional development is a clear benefit to employees who want to improve their skills and value in the marketplace. It can help them earn a promotion internally or continue pursuing their career goals elsewhere, as their marketability to employers increases. However, it is also a boon for employers, who reap the benefits of a more skilled, satisfied workforce and an attractive tool for drawing in new, intrinsically motivated employees. Employer-sponsored professional development opportunities are the definition of a win-win.
The Americans with Disabilities Act (ADA) not only prohibits discrimination based on disability, but it also requires that employers provide workers with disabilities reasonable accommodations.
And while it’s not a per se requirement, the law favors an “interactive process” for determining whether an effective accommodation is available. An employer causing a breakdown in these informal discussions — or refusing to engage in it altogether — can serve as evidence of discrimination.
It’s not a terribly complicated idea, but many employers fall short in the execution. The interactive process is such an important step for employers and it’s totally in the employer’s control to get right or mess up. Here are seven common mistakes.
1. Uncertainty from the start
For employers, the hard part often is knowing when to kick off the process.
You rarely see an employee who knows about the ADA and asks for a reasonable accommodation. You need to start the process even if they haven’t used any magic words.
2. Resistance to the process
Often, supervisors don’t recognize an accommodation request or ignore the request. If an employee mentions some type of limitation or problem, the supervisor should err on the side of caution and move to talk to the employee.
Sometimes the supervisor just doesn’t like the employee and doesn’t want to help the employee. If the employee is not a top performer or a malingerer, the supervisor doesn’t want to engage; that’s when things go wrong.
We advise employers to bend over backwards to help somebody who is saying, ‘I need some help’ for something that might possibly be a disability, whether or not you like the person.
3. Inadequate training
Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. Recognizing when someone has requested an accommodation is not always an easy thing to do, especially because there’s no bright-line event or statement that triggers the employer’s obligation to participate in the interactive process.
Often the request doesn’t come until, for example, there’s a performance management action that’s going on.” For example, an employee who is chronically late for work and starts receiving write-ups and warnings. Finally, the employee says, “I’m really having trouble getting out of bed in the morning.”
Has that triggered the need for an interactive process? You don’t want the front-line supervisor feeling like he needs to answer this question and it’s not realistic that every manager/supervisor will become an expert in the interactive process. But the supervisor should have enough training to know when it’s time to go to HR.
Training for front-line supervisors is crucial: Not on the entire ADA, however: focus on how to recognize when an employee is making an accommodation request.
4. Making it too complicated
When a request is made, employers should first look for a quick, simple and easy solution. For example, if an employee has a couple of doctor’s appointments during the next few weeks and needs to come in a little late, let the person do it.
AZ HR Hub also advises documenting the following:
What the person said when he or she came to the supervisor. (For example, “I’m getting headaches from the glare from my computer screen.”)
That the supervisor said, “How can I help you?”
The employee’s request. (“I need an anti-glare screen.”)
That the employer has provided what was requested.
That the supervisor didn’t ask anything medical. (Supervisors should stay out of medical details as much as possible.)
That there was followup, but that it stayed away from medical details.
If there isn’t a quick fix, then the formal ADA process should started not by supervisors, but by HR or legal. But this all counts as the interactive process.
5. Sharing or requesting too much information
When implementing an accommodation, supervisors sometimes disclose medical information. Focus on disclosing only information that is need-to-know. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space — not why.
Additionally, employers sometimes request or gather too much medical information. Employers need only enough to show (1) that there’s a disability, and (2) the employee needs an accommodation. Also, employers should not be getting periodic updates when the initial documentation states that the condition is not going to change.
6. Inadequate documentation
If you’re trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description is the key. It’s hard to convince a jury or agency that an essential function truly is an essential function if it’s not in the job description, or if other employees in the role weren’t performing it.
Document the whole thing from start to finish — either you did the process or you didn’t. If it won’t work, you can show you did all you could have done. If you are claiming undue hardship, you need to be able to articulate why you’ve met that standard.
On the communication side, one of the really useful tools is documentation. Written follow-up in both directions that confirms what the discussion has been.
Clarity is important, and getting things in writing adds to clarity.
7. Not trying hard enough
Often, employers cause a breakdown in the interactive process because they’re just not trying hard enough. Organizations don’t invest enough time looking for accommodation options and don’t document where/how they have looked. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. Use JAN as needed — we are free, and an outside resource. A lot of times we can find an accommodation.
When you get into any of this, call AZ HR Hub. We can assist your company by taking the burden off your shoulders.
When ADA issues are intertwined with performance issues, employers should always consider how its actions will look to the employee — and to a jury a year from now. If there is a termination, all the cards are on the table. What was the motivation, and did the employer meet its duty?
The interactive process should be ended only after people have taken a hard look and decided there’s really nothing else to say about the matter. Don’t prematurely end the process. That’s what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation.
Hiring professional talent in today’s market can be extremely difficult. Find out why it can be so tough for companies, while also learning how to deal with the stress of finding the right candidates.
For many small business owners, the last few years have been the best of times. As the economy has grown, their businesses have grown. New clients have appeared, and existing clients have increased orders. Growth is exciting.
As companies grow, however, they often need to hire new people for positions that did not previously exist. Suddenly, a function needs to be professionalized. Ten years ago a company could promote a warehouse worker to a shipping supervisor role, but after years of expansion, the business needs a supply chain manager to handle the more complex relationships that stem from a growing company. A decade ago, an office manager could double as a personnel manager at a 25-employee company. With 120 staff members today, that same firm needs at least a professional HR manager, if not a director.
Unless properly managed, these hiring projects could lead to the worst of times. For a business owner, hiring professional talent in today’s market can be problematic. Here are a few reasons why hiring can cause a headache for small businesses, and how to help your business stand out in the hiring process.
It’s a tight market
With a 4 percent unemployment rate, there is a limited pool of unemployed job candidates. Your ideal hire might be working somewhere else and needs a reason to quit their job and work for you. When a promising talent is not looking for work, they need to be identified and attracted to your company.
Employers have built stronger cultures
Since the last recession, most companies, large and small, have improved their culture and business. In 2008, a candidate might have been eager to escape a horrible boss or bad culture. Thankfully, there are fewer of both now, but relying on another company to be worse than yours is a bad strategy.
The skills you want reside in larger firms
In the past, small companies could attract talent from larger firms by emphasizing work flexibility and a family atmosphere. Over the years, most large companies have invested a fortune in work-life balance alternatives, as well as other bells and whistles. Don’t expect a candidate to take a pay cut to work at a smaller firm just because you won’t make them use a vacation day for a child’s doctor visit. Realistically, is that worth $10,000 less in salary and a cut in a 401(k) match?
Candidates have options
The traditional mindset is that a candidate applies for a job – basically asking an employer to consider them. In reality, the balance of power has now shifted. Employers ask the candidate to join them. Many small companies let their egos get in the way of this newfound practice. They think the candidate needs to show they want the job and make some type of sacrifice. This is a self-defeating philosophy, especially when a candidate is considering multiple employers. The choice is not between a candidate’s existing employer and your company. It is between the existing employer and any of two, three or five companies that will appear over the next few months. In a good economy, everyone grows. Other companies have grown and need the same skilled candidates as you.
The first thing you need to do is create a clear message for attracting talented candidates. If your team can’t answer the question, “Why should I quit my job and work for you?” then you need to revisit your message and, potentially, your team members. The answer can’t be “because we are nice people.” It needs to be a clearly defined message.
The second step is determining the type of person you want to hire. Attributes like experience level, current job and the type of company or industry someone is currently working in should all be analyzed and considered. Select and define the factors most important to your business. Identify your market, and then figure out a way to get that message to your market. Ads, recruitment firms and aggressive referral programs are all useful tools.
Lastly, have an employment process that is candidate friendly. Don’t make a candidate leave work in the middle of the day for a half-hour screening interview. Don’t have an interviewer who thinks it is their job to ask questions but not answer them. Engage with the candidate. If you don’t do that with them now, they will project that behavior onto themselves as a potential employee and stop the hiring process before it ever really gets started.
If you want to get the best out of your employees and attract new talent, you must implement an efficient talent management process.
Employees are the most important part of an organization, offering passion, personality, hard work and unique assets from all angles. This is the mentality you should have when developing your team – and your talent management process.
Some employers act on the notion that workers can be replaced, viewing them not as humans but as machines that simply get the job done. Instead, you should recognize and build on superior talent within your organization, focusing on their personal strengths and interests, and how they fit into your business.
Such a strategy is known as a talent management process, which seeks to recruit, develop and retain top talent.
Today’s employees want to know that they have been selected for positions because they have the ability to succeed in those positions and that the organization is going to continue to develop them into top performers. They are looking for companies with strong talent management systems that will recognize their individual efforts, reward their performance, and give them opportunities for growth and development.
Your talent management process exists to support your employees without trying to change them. It’s a crucial addition to every business. To get the best out of your employees and continue to attract new talent, you’ll want to implement an efficient talent management process. Here’s how.
Creating a talent management process
The first step is to ensure that there are channels and pathways for expectation setting, training, two-way feedback, and coaching to enable a continuous cycle of talent management and performance.
Transparency is key. Employees search for more than monetary rewards and a glamorous office. Sure, those incentives are attractive and beneficial, but workers want to know that they share the vision and values of their potential company. That’s why it’s crucial to identify your organization’s mission from the get-go.
The organization must have a solid idea of what they are about, what they want to accomplish and who they want to be as they journey there. This may take the form of a mission statement, organization goal and/or a list of no-compromise values.
Given how tight the labor market is today, it’s critical that you’re able to differentiate the experience your company or team will provide for a potential candidate and, eventually, employee. Part of how this is accomplished is by sharing company values and telling their story – things that must be proved out once someone is hired. It can’t just be lip service.
Your vision and values as a company will influence every part of your talent management process, from recruitment and hiring to retention and employee development. For instance, an applicant might be a talented individual with tons of experience, but if their objectives don’t match yours, they won’t serve your organization the way you need. Or, if a current employee isn’t progressing in a way that suits your mission, you’ll better know how to approach the issue for both parties.
Areas of focus
There are many issues to address in your talent management process:
Organizational and job design: Which skills, abilities and performance are needed to meet goals and objectives?
Workforce planning: What is your strategy or plan for developing teams with the necessary skills and capabilities? Which skills are critical to hire, and which can be built through training and coaching?
Talent acquisition: How will you source, screen and hire talent with the right skills, abilities and characteristics?
Onboarding and orientation: What are your pre-arrival and arrival logistics? What will your new-hire orientation entail? How will you ensure effective expectation setting, team integration, and cultural alignment and assimilation?
Learning and development: How will you customize training for each worker in line with company goals and objectives? How will you integrate this development into day-to-day performance, management, feedback and coaching?
Performance management: How will you provide continuous opportunities for performance review, appraisal, feedback and planning? How will you ensure clarity of expectations and nurture a culture of coaching and performance?
Leadership development: How will you review employee performance and potential? How will you develop and prepare individuals for possible leadership roles?
Employee engagement: How will you continuously gauge employee engagement levels? How will you align their work with the company’s vision, objectives, beliefs, roles and values?
As a small business looking to make initial inroads around effective talent management, it is important to focus on the components and levers that are most impactful for your team or organization.
There are also some basic requirements you have to fulfill as a small business owner. When people come to work for you, it’s your responsibility to provide a safe and healthy workplace, to comply with relevant employment laws in your country, to keep good records, and to pay salaries and benefits promptly and effectively.
In this blog, we’ll dive into these topics and show you how to comply with these important human resource requirements in your small business. They may not be the most exciting things you’ll do in your small business, but they are critical if you want to have happy, productive employees—and avoid some organizational or legal headaches down the road.
Note: When you’re reading this blog, keep in mind that it’s aimed at a U.S. audience. Employment laws and other regulations vary widely depending on the country you’re based in—and sometimes there are local regulations to be aware of for your city, state, province, etc. So although we’re going to go through some general examples here, based on U.S. regulations, be sure to check your local situation, and ideally get professional legal advice to make sure you’re complying with all relevant laws in your area.
1. Keep People Safe
If you think occupational safety or “health & safety” regulations are just about annoying government red tape, here’s a shocking statistic for you: in the United States in 2015 alone, 4,836 employees died from injuries sustained in the workplace.
Let those numbers sink in for a while.
It should be clear, then, that your first and most important responsibility as a small business owner is to keep your employees safe. So in this first section, we’ll go through some basic principles of occupational safety.
Assess the Risks
Start by analyzing your workplace and the processes your employees have to follow. Look for potential dangers and make a comprehensive inventory.
Some workplaces are more obviously dangerous than others—the risks at a manufacturing site where workers handle toxic chemicals and heavy machinery are easier to see than those at an office, for example. But in any workplace, things can go wrong.
Every year in the U.S., for example, 27 people die and over 10,000 are injured by elevators. Thousands of people injure themselves, sometimes seriously, by tripping over loose wires, open desk drawers, objects left in passageways, and so on. Poorly designed workstations and office chairs can leave employees vulnerable to back pain, repetitive motion injuries, and other serious ailments. An old or badly maintained building can create any number of hazards, from faulty wiring to loose ceiling tiles.
So start by compiling a list of potential hazards. You may be able to have an experienced health and safety professional visit your workplace and conduct a free survey as part of a subsidized government program. Or you could pay for a private consultant to do it.
Encourage employees to alert you to anything they see in their jobs that is potentially unsafe—they are the best resource to help you compile the initial safety inventory and then keep it updated.
Put Controls in Place
Once you’ve assessed the risks, try to eliminate as many hazards as you can, and where you can’t eliminate them, at least aim to control them and reduce their likelihood.
Usually this involves setting up particular procedures that every employee should follow (e.g. when you’re operating this machine, you must wear eye protection and check that the safety catch is functioning properly). Then make sure everyone knows the procedures, that they’re properly documented, and that signs or posters are in place to remind people.
Here are some other important steps:
Make a plan for regular maintenance of the building and of any equipment that employees use.
Have a plan for medical emergencies and post emergency numbers prominently.
Train some employees in first aid procedures and make sure people know who they are and how to reach them.
Have a procedure for reporting injuries and make sure people know it.
Train all employees in health and safety procedures to ensure they know what to do.
Create an emergency plan and conduct frequent drills.
Show Your Commitment
Identifying the risks and putting controls in place is great, but what if your employees still don’t follow the right procedures? It’s critical that everyone takes workplace safety seriously, and you can set that tone by your own actions.
Demonstrating your commitment to employee workplace safety will encourage your staff to take the subject seriously too, and it may help avoid accidents. On top of that, it shows that you value them and their physical well-being, so it sends a powerful message that may improve their general happiness and job satisfaction.
So create a clear policy on workplace safety and health, and post it prominently around the office and on the intranet or company website. Hold meetings to communicate the policy in person, and hold managers and employees accountable for complying with it.
Keep reviewing and updating your policy and procedures regularly, encouraging input and suggestions from employees. And if you’re requiring people to do extra work to ensure procedures are followed, make sure they have the time and resources to do that effectively.
Following all of these steps will not immunize you from workplace accidents, but it will help reduce their likelihood and create a safer work environment for everyone.
2. Know the Law
Employment laws are a key part of small business human resource requirements and they can be very complex. These laws govern small businesses too, so you need to be up to speed and make sure you’re complying with all the regulations.
Equal Opportunity Laws
One of the most common forms of employment law deals with the issue of equal opportunity. Essentially, you should not discriminate in your hiring practices based on gender, race, religion, national origin, age, disability, etc. And you should have clear policies in place to guard against discrimination and harassment in the workplace. You may also be required to put up notices in the workplace to inform employees of their rights and your compliance with the relevant laws.
A few examples of the laws affecting this area in the U.S.:
Uniformed Services Employment and Reemployment Rights Act
Equal Pay Act
Americans With Disabilities Act
Workers in many countries have the right to organize and bargain collectively or join a union. They often have the right to be paid overtime if they work extra hours, and to have a certain number of work breaks during the day.
There may be rules on how much vacation time or other benefits you have to provide—and if you provide paid vacation and employees don’t use it, you may have to pay them the monetary equivalent. And there are many more rights, both large and small, that workers have fought for over the years and had codified in law.
Sometimes there are exceptions—for example, in the U.S., salaried workers are generally exempt from the laws around overtime and work breaks, and independent contractors are exempt from many of the rules that apply to permanent employees. But you need to be careful about how you classify people, because there are rules about that too, and it’s easy to fall foul of them.
Also, don’t forget about things like parental leave and medical leave. You must allow employees to take time off according to the laws in your country, and make sure their job is still available for them when they return.
We covered the principles of workplace safety in the last section, but there may also be specific laws and regulations you need to comply with and posters you need to display in the workplace. So in addition to the work you do to provide a safe workplace, make sure you’re following all the relevant rules as well.
3. Keep Good Records
Filing is not the most exciting task you’ll ever do, but it’s important. The good news is that the requirements are quite simple—you just need to keep a file (or files, as we’ll see in a minute) for each employee, containing important information about their employment. And, most importantly, you’ll need to keep these files very secure, because they contain sensitive information.
Ideally, you’ll have two separate files for each employee: one for general employment information, and another for medical information. Here’s what should go in each:
General Employee File
This file gathers all the information related to a particular employee in one place. You can start it when you hire them, by dropping in their resume and any hiring documents or forms they’ve signed.
Then you can add documents as you go along, such as:
any disciplinary action
acknowledgement of receiving the employee handbook
other contracts or agreements the employee has signed
Employee Medical File
If an employee has a medical condition or disability that affects their work, you may need to keep medical records, but you should always keep them in a separate file in a very secure location.
That’s because medical information is very personal, and someone who may need to access the employee’s general file should not see their medical records. So keep this information in a separate file, and be very strict about who can access this file and why.
You need to keep proof of a worker’s eligibility to work in the U.S. This form is called Form I-9. Because immigration officials can ask to check these forms, you should keep them separate from the employee’s other information, so that you can just provide them to the government without giving access to all the employee’s personal data.
4. Provide Pay & Benefits
Another basic HR requirement for every small business is to pay people on time and provide any relevant benefits.
Small businesses often struggle with sufficient cash flow, but if you manage it carefully and make accurate forecasts, you can ensure you always have enough on hand. And if you need to delay any payments, employees’ salaries are not the ones to mess with. Paying someone late tells them that they’re not respected, and/or that the business is in serious trouble. Either way, it’s a sure way to get them updating their resume and looking for a new job.
But beyond that, you also need to make sure you calculate the right amount, make the correct tax deductions, keep and provide the right records, file the right forms with the tax authorities, and so on.
You also need to keep on top of benefits—give employees the right information and make it easy for them to access their benefits, and keep track of, for example, how many vacation days each person has taken out of their overall entitlement. Where benefits are provided by a third party, such as a health insurance company, you need to make sure that everybody is enrolled who should be enrolled, and that everything is running smoothly and people are able to access the help they need.
In this blog, you’ve seen how to comply with some important human resource requirements for your small business. You’ve learned how to keep your employees safe, how to keep on top of employment laws and regulations, how to keep good records, and how to provide pay and benefits efficiently.
AZ HR Hub is your HR partner so you can focus on your business. Call us today for a free consultation.
How can you reconcile conflicting laws and keep your workplace both safe and compliant?
It’s a Catch-22 with big implications for your workplace: Marijuana is a Schedule I controlled substance under federal law — in other words, illegal. Yet many states have legalized marijuana for medicinal and even recreational use, with new laws being passed all the time.
As an employer, you may have an obligation to accommodate employees who use marijuana for medical reasons, or you may want to relax your policies to cope with a talent shortage. But can you reconcile the conflicting laws in this area and keep your workplace both safe, compliant and competitive?
Cole doctrine reversed by Sessions
Back in 2013, during the Obama administration, Deputy Attorney General James M. Cole released a memostating that a few key marijuana enforcement priorities were particularly important to the federal government. These included, among others, preventing marijuana distribution to minors; preventing revenue from marijuana sales going to criminal enterprises, gangs and cartels; and preventing drugged driving, gun violence and other adverse health consequences.
Beyond the listed enforcement priorities, however, the so-called Cole Memo explicitly stated its “expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement issues.”
While the memo noted that nothing in it precluded investigation or prosecution under federal law, it also stated that the U.S. Department of Justice was “committed to using its limited investigative and prosecutorial resources to address the most significant threats.”
The Cole Memo, in other words, articulated a largely hands-off approach on the part of the federal government when it came to states’ passage, administration and enforcement of their own marijuana laws.
In January 2018, however, Attorney General Jeff Sessions explicitly rescinded all “previous nationwide guidance specific to marijuana enforcement…effective immediately.”
Know the laws that apply to your workplace
“At last count, there are approximately 30 jurisdictions that have medical marijuana statutes; only about 10 deal with recreational usage,” Linda Hollinshead, a partner in the Philadelphia office of Duane Morris LLP.
“Medical marijuana impacts drug testing and drug-free workplace policies,” she said. “Also, there’s a high probability that an employee on medical marijuana is disabled, bringing in ADA concerns and concerns about discipline and discharge.” She noted that a lot of the laws make clear that employers don’t have to tolerate employees who are “under the influence” at work, but the standard for incapacitation is not clear.
Given that medical marijuana laws vary widely, Hollinshead emphasized that employers must know the law in their particular jurisdiction(s): “Pennsylvania’s statute, for example, says you can’t discriminate against a certified medical marijuana user, but the law does not address whether employers must accommodate use.”
Dustin Carlton, an associate in the Nashville office of Bass, Berry & Sims PLC, similarly noted the wide variance that applies from state to state with regard to statutory language. Accordingly, he told HR Dive, employers should review any existing zero-tolerance, one-size-fits-all policies: “If you are a multi-state employer, you need to assume you need to make some modifications to tailor to each individual state, or make concessions in terms of past practices.”
Certain exceptions apply
Many state marijuana laws have carve-outs, Hollinshead said. Most, for example, provide that you are not required to violate federal law.
The Drug-Free Workplace Act of 1988 requires a drug-free workplace policy for organizations receiving a federal contract over a certain dollar amount (currently set at $100,000), as well as organizations receiving a federal grant of any size.
State marijuana laws also have no bearing on drug-free requirements and testing imposed on safety-sensitive transportation employees by the U.S. Department of Transportation.
Practical considerations for testing and discipline
Employers don’t have to tolerate performance, conduct or safety issues, said Hollinshead. She said that oftentimes when an employee is tested for reasonable suspicion and there’s a finding of marijuana usage, a decision can be made without referencing the test results.
“Typically, when this issue comes up, it’s because something else is amiss — usually that’s the safer issue for discipline,” Hollinshead said. “If you have discipline and discharge policies for underlying conduct, you can rely on those.” This would mean, for example, disciplining or firing the employee, not for the positive marijuana test, but because he or she punched a co-worker, crashed a warehouse vehicle, or had a lengthy history of safety violations.
Carlton said the first step for employers should be to evaluate whether you should be continuing with a zero-tolerance policy if you are not, say, a federal contractor. “If you are still going to disqualify applicants, focus on disqualification for use inthe workplace as opposed to off-duty, legal conduct.”
He said employers should also consider the nature of the job when deciding whether or not to conduct drug testing. “Is it a policy that you’re testing all applicants at the beginning, or only safety-sensitive positions?” He said employers may consider eliminating drug testing except for safety-sensitive positions. “The risk to you as an employer is a lot lower if you’re testing someone who drives a car for you versus a secretary who comes up positive for medical marijuana.”
Recent case law: A shifting tide?
Up until about six months ago, Hollinshead said, employers were winning state law cases brought by employees who were not hired, or fired, due to marijuana usage. The employees were claiming failure to accommodate under the ADA, independent causes of action under state law or entitlement to off-duty usage. The courts, in ruling for the employers, said marijuana is an illegal drug under federal law.
But recently, she said, three cases (from Rhode Island, Connecticut and Massachusetts) have gone the other way; the courts ruled that the federal Controlled Substances Act is not intended to pre-empt state law.
When asked if the new cases ruling in favor of employees were anomalies or a trend, Carlton said, “It’s tough to say — feels like it’s more of a trend, but I don’t know if I can really opine on that. You’d like to think they are more of an anomaly, but considering some of the unique statutory framework, I would expect there to be more challenges to it, more settlements, modifications to past policies to prevent litigation.”
Time will undoubtedly bring more clarity to the issue of workplace marijuana testing. Unfortunately for employers, “it’s really an unsettled area right now,” said Hollinshead.