With our headquarters based in Golden, Colorado, National Restaurant Consultants has long been a part of conversations regarding legalized marijuana. It’s been a decade since the decriminalization of possession, since access to medical-use licenses was made easy; and several years now since Colorado became one of the first states to approve recreational use, thus establishing a commercialized industry.
What was once termed 'substance abuse' is now an accepted activity, not just for health reasons, but simply for pleasure.
Naturally, there are many unintended consequences. And while there are more and more states jumping on-board legalization, Colorado is a few years ahead in deliberating the consequences and how best to deal with them. Obviously, the considerations are numerous—from safety issues to compliance, from industry regulation to consistency in rule-making. From a consultant’s perspective, we are honing-in on the effects on business, particularly, how an employer should handle an impaired employee.
It used to be a no-brainer. An employer has the right, even the obligation, to maintain a drug-free establishment, and so illegal drug-use was grounds for an automatic termination. But what happens when the drug is no longer illegal? Especially in cases of medical use, marijuana users are becoming more and more vocal about their rights to partake and stretch the boundaries of when and where it’s okay to be high. What was once termed “substance abuse” is now an accepted activity, not just for health reasons, but simply for pleasure. Claims such as “under the influence” and “abuse” now largely carry a negative connotation with nearly a quarter of the population.
Policies need to focus on impaired performance and not substance abuse.
Colorado isn’t the only state struggling. California recently reviewed the case for Ross v. RagingWire, ultimately ruling that an employer isn’t required to accommodate even medical marijuana use, despite the fact that California is one state to recently legalize by majority vote. In this particular hearing, it was the federal law that was called upon, which still classifies marijuana as a Class 1 drug—as dangerous as the substances making headlines and television series, like heroin and meth.
But again, this isn’t the popular consensus about what marijuana is. In states like Colorado and California, which have a strong inclination toward healthy lifestyles and holistic living, pot is viewed as a natural means for relief or pleasure or both. For the court to site the federal law as just reason for termination, while also approving medical and recreational use and collecting tax dollars on the sales, seems contradictory. This very contradiction can make for a tricky situation for employers—especially small business owners who don’t have the time or funds to head to court every time they need to terminate an employee for coming to work high.
Hiring and getting a viable work staff in a restaurant is tough enough, and it is highly likely that some of your hires will also be marijuana users, whether for medical or recreational purposes. As such, drug testing will continue to knock out your staff, so substance use policies need to be redefined. At this time, our restaurant consultants are advising employers to act based on performance, not suspicion, and it makes sense: If the perception is that an employee has arrived at work under the influence, something in their behavior must have tipped you off to that. Whether or not it is the drug affecting the employee’s performance is not the issue; a manager or owner can simply evaluate the performance itself and take appropriate action. Policies need to focus on impaired performance and not substance abuse.
In order to avoid any accusations of unfair termination, restaurant owners and managers should clearly communicate the company policies and expectations from the get-to—from new employee trainers to regular meetings, and posted literature, too. From there, a standard of regular performance evaluations will put the emphasis on an employee’s capability and function in the workplace. The key is to keep the conversation focused on performance expectations and the overall business vision, and holding each employee to that standard, regardless of their opinions or actions regarding marijuana.