Q: Can we ask job seekers to disclose on their applications whether they use medical marijuana, given that our state permits its use but not recreational pot? Our workplace is drug-free, and anyone who tests positive is automatically forbidden from working at our practice unless they show their medicinal marijuana card. We’d like to skip the step and have them disclose medicinal use in advance.
A: Understandably, you want to streamline the hiring process by asking applicants upfront about any medical marijuana use. However, you must address legal considerations first.
According to the Americans with Disabilities Act, employers cannot ask job applicants to disclose medical information, including whether they use medical marijuana. Such an inquiry could reveal a person’s disability or medical condition and is prohibited during the pre-employment stage unless it directly relates to the applicant’s ability to perform essential job functions.
Next, asking someone on a job application about medical marijuana use could be viewed as discriminatory or a violation of privacy rights, depending on your state’s laws.
As a drug-free workplace, your practice may conduct pre-employment drug testing. However, automatically disqualifying an applicant who tests positive for marijuana without you determining whether the person is a legal user could present legal risks. A more compliant approach would be to conduct the drug test and, if the result is positive, allow the applicant to provide a medical marijuana card or other documentation before you make a final employment determination. Even safer is partnering with a laboratory company that can do the testing and has a medical examiner to ask the pertinent questions.
Note that no state allows employees to be under the influence of marijuana in the workplace, regardless of card-carrying status.
Given the issue’s complexity, I advise you to consult with an attorney familiar with state and federal employment laws.
Q: Our practice has employed a customer service representative for six months. Unfortunately, she has struggled to adhere to procedures and protocols and has failed to follow through on tasks several times. We’ve received a few complaints from clients about her performance. Despite conversing with her about the issues, I haven’t noticed any significant improvements. Before I consider replacing her, how should I address the situation?
A: Before you move to fire her, ensure that she receives a fair and structured opportunity to improve her performance. Start by reviewing the policies and procedures with her to confirm she fully understands her responsibilities. In many cases, performance issues stem from a misunderstanding or improper training. Then, do this:
- Make sure she understands how to perform her job correctly. Demonstrate the tasks and then have her perform them while you observe. Finally, ask the employee to teach you the procedures. If communication is the underlying problem, those steps can identify where the breakdown occurred.
- If she continues to struggle after being retrained, consider placing her on a formal performance improvement plan. It’s a structured opportunity with clear, measurable goals and a timeline. Be sure to explain the plan in detail and tell her that the consequences of not meeting the standards could include her termination.
- Provide regular (ideally, weekly) feedback on her progress and offer additional guidance. Frequent check-ins show you’re invested in her success.
- Consider pairing her with a more experienced team member who can provide ongoing guidance. Mentors can offer practical tips and feedback and help employees adapt to the workflow.
If your CSR’s performance still falls short, you might need to implement these two formal disciplinary measures:
- Written warning: Document your concerns and formally communicate them to the employee. The written warning should outline the issues, your expectations for improvement and the consequences if she doesn’t meet them.
- Final warning: Issue one if the employee fails to meet expectations despite additional training, mentoring and coaching. Set a strict timeline for improvements, and make clear that failing to meet the standards will result in termination.
Remember that replacing an employee is costly, both in time and resources. It requires recruiting, interviewing, training and onboarding someone else. Therefore, ensuring that you’ve given a team member every chance to succeed can help minimize turnover and the disruptions that come with it.