Can we drug test janitor who admits smoking pot?

I have a situation in Vancouver, WA where it's been perceived an employee has come to work looking stoned. He works as a janitor and is able to perform his job. The other day he told another janitor that he takes marijuana on a frequent basis before coming to work, and that it helps to eliminate migraine headaches. As a result, this other employee (who happens to have been working for us less than a month), has a concern working with him. He does operate machines (i.e. vacuum cleaner, scrubbing machines), and this employee has a concern about her safety on the job. Bottom line, his performance has not been impacted.

Rita Risser's Response:

I do not know if there are special rules in Washington on drug testing, so I do suggest you contact a local attorney for a definitive answer. Here are some general guidelines.

Generally, employers have the right to drug test if they have a legitimate business reason and reasonable suspicion of drug use by a particular employee. The fact that he "looks stoned" is not enough, unless you can testify that you are an expert on what stoned people look like (and exactly how did you gain this expertise?) He admitted to a co-worker that he smokes, although it is possible that the co-worker lied (does she have a motive to get him fired?) The fear for safety argument because he uses machines seems bogus to me. I've never heard of someone being seriously injured by a runaway vacuum cleaner.

I think at this point you have enough information to do an investigation, which means to ask him if he does smoke before work. If he says yes, then you should give him an opportunity to enter drug rehabilitation. If he denies using pot, I recommend monitoring his behavior. If he continues to do a good job, I would allow him to continue employed. If you receive additional reports of his use, or he shows signs of incapacitation, again confront him. If he denies a second time, perhaps you can send him for a drug test, but if he tests clean, he could have the right to sue for invasion of privacy.

Disclaimer: This information is provided with the understanding that the author and publisher are not engaged in rendering legal or other professional services. The publishers disclaim any liability, loss or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information. This information is not a substitute for the advice of a competent legal or other professional person.