Marijuana and Your Workforce

Published by Brett Holubeck on August 30, 2018

Are you prepared to deal with an employee that uses marijuana? How would you respond to employees that are high at work? Unfortunately, all employers must be prepared to address the use of marijuana in the workplace. One survey found that 1 out of every 10 workers has gone to work high. In addition, there are approximately 22.2 million American adults that used marijuana in the last month.

Currently the rules governing marijuana vary depending on the state (marijuana is still illegal at the federal level). Recreational marijuana is legal in 9 states and medical marijuana is legal in 30 states. There is no doubt more states will legalize marijuana for both recreational and medical use. More than 61% of Americans support legalizing marijuana. That support is up from just 31% in 2000.

What Do Employers Need to Know about Marijuana?

Here is some information from the National Institute on Drug Abuse, a United States government research institute, about the short-term effects of marijuana:

When a person smokes marijuana, THC quickly passes from the lungs into the bloodstream. The blood carries the chemical to the brain and other organs throughout the body. The body absorbs THC more slowly when the person eats or drinks it. In that case, they generally feel the effects after 30 minutes to 1 hour.

Marijuana overactivates parts of the brain that contain the highest number of these [brain] receptors. This causes the “high” that people feel. Other effects include: 1) altered senses (for example, seeing brighter colors); 2) altered sense of time; 3) changes in mood; 4) impaired body movement; 5) difficulty with thinking and problem-solving; 6) impaired memory; 7) hallucinations (when taken in high doses); 8) delusions (when taken in high doses); and 9) psychosis (when taken in high doses).

What Employers Must Consider

All employers must be aware of marijuana issues in the workplace. Unless you are Snoop Dog or doing a report for CNN on marijuana, your company needs a plan in place to address employees that use marijuana while they are working. Employers also must address off-duty use of marijuana to the extent that they can.

Here are some steps that many employers have considered to address marijuana use by employees:

Create a drug-free workplace policy that addresses drug use and drug testing. The policy prohibits the use or manufacture of illegal drugs at work. The policy also establishes when employees will be drug tested.

Train your supervisors and managers to recognize the signs of drug impairment. Many sheriff’s departments and local law enforcement agencies will offer the training for free. Your workers’ compensation carrier may also offer the training at no cost to your company.

Be aware of state law requirements especially as they relate to accommodating the off-duty use of marijuana. The Massachusetts Supreme Judicial Court held that an employer needs to engage in the interactive process under the Americans with Disabilities Act to determine if there were other possible accommodations for an employee that uses medical marijuana. Connecticut and Rhode Island recognize that a company that refuses to hire someone simply because the applicant is a medical marijuana user violates each state’s marijuana statute. All companies must be prepared for more states to adopt similar legislation and court rulings prohibiting companies from retaliating against employees for their off-duty marijuana use.

Outline the essential job function of each company position to ensure that any employee that must be accommodated for off-duty marijuana use can meet all the requirements of the position.

Do not forget to follow any special federal regulations that apply to any of your employees such as the Department of Transportation regulations for Commercial Drivers.

Conclusion

Marijuana is changing the workforce. As more and more people come to support legalizing marijuana (and more people use it), it will eventually be legalized. Once it is legalized, employers will probably refrain from penalizing people that use it off-duty so long as the person is not impaired or high when they come to work. The one obstacle from making it like off-duty use of alcohol is that there is currently no test that can measure marijuana impairment. Employers must continue to train their supervisors to recognize external signs of impairment until there is a reliable way to test whether someone is high on marijuana. Unfortunately, the issues surrounding marijuana and the workplace will continue to multiply for the foreseeable future.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

I-9’s and Immigration in the Age of Trump

Published by Brett Holubeck on August 17, 2018

Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits that it has conducted to around four times as many I-9 inspections (Notices of Inspection) in the first seven months of 2018 as it did in the prior fiscal year. ICE conducted 5,278 Notices of Inspection since January 2018. The reason that the government has increased the number of inspections is clear. They fit with Trump’s agenda to strictly enforce immigration laws.

Unfortunately, many businesses do not regularly audit their I-9’s and those that do often make errors that cannot be corrected. In today’s climate, no business can afford to be unprepared for an I-9 inspection. Luckily, there are a few simple steps that employers can take to help prepare for these unanticipated inspections which frequently occur because an employee or someone else tipped off ICE.

When to Review I-9’s

Before an I-9 audit occurs, you have the opportunity to review and correct your I-9’s. ICE considers self I-9 audits that occur before a Notice of Inspection more favorably than an audit that occurs after ICE has already served a Notice of Inspection. However, if ICE has already served a Notice of Inspection, then it is often a good idea to make changes. Fines from a Notice of Inspection can be substantial.

Can You Prevent a Problem?

Employers make a number of simple, but critical mistakes when filling out I-9’s. One of the biggest failings of companies is a lack of training. It should go without saying that whoever is filling out the I-9 needs to know how to complete the I-9 to do a good job. Some simple training can help these employees and minimize costly mistakes.

Here are some of the most common mistakes on the I-9:

Forgetting to re-verify the work authorization of employees with an Employment Authorization Document (EAD card).
Reverifying US citizens or permanent residents.
Not completing the I-9 in a timely manner. Section 1 must be signed by the first day that the employee begins work. Section 2 must be completed by the employer no later than 3 business days after the employee begins work. If the employee began work on a Monday, then Section 2 must be completed by that Thursday.
Leaving entire sections blank. Re-check the document while the employee is still there or after you complete it. Take a pencil or pen and touch each box to make sure that something is in each box where information is required (in Section 1 “N/A” should appear in any box that does not apply to the employee).
Keeping I-9’s that could be destroyed. I-9’s are kept for 3 years past the date of hire or 1 year after the end of employment, whichever is later. Always keep I-9’s for current employees.

What’s the Worst that Can Happen?

What if the audit reveals that half of your workforce is not authorized to work? What would you do? Would you be able to continue operating or would you have to shut down? How much would it cost to replace half of your workforce? Could you even operate without half of your workers? This is exactly what happened to St. Agnes Bakery when it was determined that half of its workers were not authorized to work after an inspection in January.The facility remains closed more than 6 months later.

Employers will also be fined for violations. The inspector’s job is to see if you are not following the proper I-9 procedure and to fine you or take other corrective action against you.

Prevention is key. Make sure that you regularly audit your I-9’s and correct any errors. An audit can save you a lot of time and prevent potential problems. While I-9’s may seem like just another paper that employees need to fill out when they begin working, there are serious consequences when employers fail to follow the law.

The information provided is my own and does not reflect the opinion of my firm or anyone else

Beware of ICE! What to Do During an ICE Raid

Published by Brett Holubeck on July 29, 2018

An Immigration and Customs Enforcement (ICE) raid can devastate a company and its employees. Unfortunately for employers, President Trump has dramatically increased ICE raids. According to the Des Moines Register, “ICE agents have arrested an average of 4,143 undocumented immigrants without a criminal record each month under the Trump administration compared to an average of 1,703 arrests per month under Obama.” ICE has conducted 6 major ICE raids this year with several of these raids involving the arrest of more than 100 individuals from one company. The meat packing and the horticulture industries in particular have been the targeted.

In a June raid on a flower and garden center, the extremes that ICE will go to in a raid were revealed. In this raid, undercover ICE officers went to the break room and began passing out Dunkin Donuts to the staff. ICE struck while employees gathered in the break room; ICE took 114 undocumented workers into custody. What is most interesting about this raid is that some employee unwittingly granted undercover ICE agents access to the employee break room. The raid serves as a great reminder that ICE will conduct these raids undercover and employers must train their staff to adequately respond to a raid.

What can companies do to protect themselves and their employees?

Train your supervisors and staff that interact with visitors. Just because ICE shows up at your business does not mean that they are authorized or permitted to be there. ICE officers are allowed to go undercover and do not need to disclose that a raid will occur. However, without a warrant signed by a judge they are not allowed in the non-public areas of private property unless the owner or authorized staff member allow them to enter. Employers can refuse to let ICE enter without a warrant. If ICE does not have a warrant, then employers may feel free to ask the ICE officers to leave. In addition, there is a difference between a warrant issued by ICE and a warrant signed by a judge. You can train your staff to recognize the difference between these warrants and to read the warrant to ensure that the search is limited to what is specifically listed in the warrant. By training your supervisors you can further enhance your ability to respond to an ICE raid.

The best way to respond to an ICE raid is to prevent yourself from being a target of ICE. Employers should do their best to comply with the law. Here are some general tips:

First, depending on your workforce and the labor pool, many employers consider adopting E-Verify, which is a tool that allows you to check a new hire’s authorization to work. This will eliminate many people that are not authorized to work, but it will also reduce the size of your labor pool.
Second, you must train your staff that complete the I-9 (the form that must be completed at the beginning of employment) to detect fake ID’s and other fraudulent documents.
In addition, many employers avoid liability by regularly auditing their I-9’s with the assistance of an attorney or other professional. There are a number of complex I-9 issues. One of the most frequent is that employees on DACA or those that have employment authorization documents can lose their authorization to work. Employers must be prepared to reverify these employees to ensure that they are still authorized to work and to take proper corrective action, including termination, if the employee loses their work authorization.

Finally, ICE also conducts I-9 audits (Notices of Inspection). An ICE officer appearing at a business may be coming to serve a Notice of Inspection rather than to conduct a raid. Employers have 3 days to respond to these notices and it is important that you or a supervisor do not waive the 3-day period. There are a number of corrective actions that can be taken during the 3-day period, so it is important to take immediate steps once you become aware of a Notice of Inspection.

One thing is certain. These raids will not stop. ICE will conduct more raids, take more undocumented workers into custody, and break up more families. By forming an action plan to respond to or prevent an ICE raid, companies may limit their liability, help their employees, and eliminate the risk of being forced to replace a large portion of their staff on short notice. Finally, any company that is raided will face penalties (potentially criminal), fines, and will need to find new workers to replace the ones that it lost.