THA 144: Drug Testing in the New Age of Legalized Cannabis

Judy Zimmerman Walter is co-owner with her uncles and the CFO of, this 57-year young service business. Zimmerman’s Automotive, Mechanicsburg, PA is a true blue ‘family enterprise’ with 12 out of a team of 29 team members that are ‘IN THE FAMILY’. Zimmerman’s is a top automotive repair facility along with a quick lube and a used car division.

Among her involvement: Women’s Board of the Car Care Council, AASP-PA Alliance of Automotive Service Providers, and the Auto Care Association. Listen to Judy’s other episodes HERE.

 

Noah Frank, ESQ, enables businesses to excel under increasingly regulated and taxing environments while protecting them from harmful litigation. He is a trusted partner to a variety of businesses, such as manufacturers, professional services, restaurant chains, medical practices, importers, contractors, and closely held companies. 

As a member of the Labor & Employment Practice Group, Noah provides practical and thoughtful advice, strategy, and solutions in a full range of employment, corporate, and workers’ compensation matters. He provides comprehensive labor and employment counseling on compliance, policy implementation, and risk mitigation of wage and hour, discrimination, harassment, leave interference and retaliation claims, including under the FLSA, Title VII, ADA, ADEA, FMLA, OSHA, NLRA, Worker’s Compensation, unemployment, and state and local laws.

He provides advice to cannabis businesses on their employment practices. 

HONORS

• Selected to the Illinois Super Lawyers List of “Rising Stars”: 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019

Frank Scandura, Franks European, Las Vegas, NV started working on cars as a teenager in upstate New York and moved to Las Vegas in 1988. After years of writing service for Mercedes, he opened Frank’s European service in 2001 and grew to a 12,000-square foot, 10 bay shop in the northwest part of Las Vegas, not far from the famous Strip! He has 15 team members and is partnered with his wife Deborah. From his first immersion, in the business, pumping gas at 15 years old in Orange County New York, to writing service at a Mercedes dealer in Las Vegas Frank Scandura shares his business acumen and offers insights and trends on leadership as a business coach. Frank’s previous episodes HERE.

Key Talking Points:

There is no legal advice provided in this episode

• Federal level Marijuana remains unlawful
• Some states have legalized it from a medical perspective, recreational perspective or decriminalized it with some small possession like a traffic ticket
• What are we going to with our safety-sensitive positions such as DOT
• Random drug testing is costly and must comply with rules/laws that are on the books

 

• No law will protect use, possession, consumption or impairment in the workplace. 
• Zero impairment to test drive the vehicle

 

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• Pre-employment testing state by state may be difficult to enforce. Please check with council
• Be sure you discuss liability with your insurance providers including your workman’s comp provider
• Our drug testing policies must be very specific
• If a mandatory drug test after an accident, what constitutes an accident?
• Many shop owners do not want their people to work on their client’s vehicles while under the influence
• The laws have changed access, it is easier
• Blood tests are more accurate than urine tests. You may need an authorization form person 
• No law will protect use, possession, consumption or impairment in the workplace
• How you test for it is different.
• Zero impairment to test drive the vehicle
• For multi-state employers will need to learn each state’s law
• It is time to get the council to outline testing for Cannabis
• Example in Indiana, pre-hire, random, reasonable suspicion post-accident, these tests are fully available to the employer
• In a medical-only jurisdiction, you’ve must understand the scope of the law
• Frank: If you have a drug policy, you need to follow it as an owner/professional. You cannot discriminate and if random drug testing it needs to be purely random.
• Judy has an issue with a performance termination, however, the person was on medical marijuana because of an accident
• Judy consulted many people, insurance carrier, her attorney, medical marijuana specialist, state police, legislators
• Painful experience and loss of respect of team in shop
• Lack of information on medical cannabis. There is an underlying medical issue as it relates to medical marijuana and that privacy is protected.
• We cannot sit and wait because we can become the case that sets an example of what not to do. Spend time with your HR professionals, Insurance providers, and council 
• Worry about wrongful testing, wrongful termination, and wrongful hire, refusal to hire especially when it comes to medical cannabis (there is a confidential nature in this). No one knows today how the courts may decide
• How do we know if an employee is at risk (impaired) in performing their job or driving a client’s vehicle?
• Do we need a crystal clear random testing policy to help minimize our risk to the company, team and client?
• Even if you have a zero-tolerance policy the law in each state will outline if mandated testing can be done.
• Safety is a big issue.
• Some states have laws for testing for cannabis for pre-employment depending on the type of job.
• The laws that legalize the use of cannabis aren’t on the same par with impairment. 
• Tests show use not impairment
• Know your operations, your unique risks, and risk tolerance and update your policies procedures and training to meet your unique needs.
• Speak to council that know employment laws

 

Resources:

• A special thanks to Noah Frank, Judy Zimmerman Walter, and Frank Scandura for their contribution to the aftermarket.
• Books Page HERE
• Leave me an honest review on iTunes. Your ratings and reviews really help and I read each one of them.

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