Pub. 1 2021 Issue 2

29 words, penalties and discipline are limited to cases where the employee’s work performance is affected. • If someone violates a workplace drug policy or works while intoxicated, employers can fire them, discipline them or take some other adverse action. Also, employers don’t have to hire someone with a record of work-related marijuana use. • Employees can’t file a wrongful termination suit against an employer if the employer fires them because of work-related marijuana use. The legal line being drawn is reasonable because it is based on whether marijuana use wil l negatively affect the employer or other employees. As a dealer, you can’t refuse to hire, promote or increase compensation for someone if you know they use marijuana when they aren’t working and aren’t on the dealership property. However, that doesn’t mean an employer has to ignore the problem if an employee’s job performance is affected by marijuana. Employers should be cautious about blood tests. A positive drug test is not enough reason to take action against an employee. There also has to be some evidence of impairment on the part of the employee. Some employers have employees take random blood tests, and they also sometimes ask prospective employees to take pre-employment drug tests. All tests have to be confidential. However, Montana law does not define “intoxication,” and there are limits about which employees can be asked to take a drug test. You should be familiar with Montana’s restrictions on drug testing so you can comply with them as an employer. Talk with an attorney if you have specific concerns, but in general, drug testing is legal in the following common- sense situations: • When mandated by federal law • When the employee operates or is close to equipment such as industrial machinery • When the employee handles substances that are flammable or could explode, toxic substances or present some other danger In 1996, California was the first state to legalize medical cannabis. (Montana legalized medical marijuana in 2004.) California legalized recreational marijuana in 2016. How have California companies handled drug testing? Those employers that test for drug use in prospective employees have usually chosen to ignore tests that show traces of cannabis. Employees are told they can’t use marijuana on the job, and the employers trust them to comply. Employers do have a responsibility to remind employees about existing prohibitions that affect possessing or using marijuana at work. Now is also a good time to update drug- testing policies. For more information about issues to consider when deciding about workplace rules for marijuana, refer to the following website: https://www.nationaldrugscreening.com/employee- marijuana-use-checklist-of-impacting-issues/. What constitutes impairment under Montana law? It’s not just the amount of THC in your blood; if you act impaired, you are impaired. A driver can be convicted of a DUI with less than 5 ng/ml if they act impaired. However, blood levels are not allowed to be at or above 5 ng/ml of THC.