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Marijuana: O.penVAPE changes its drug-testing policy after pot-advocate criticism

O.pen VAPE's Todd Mitchem with Boulder Weekly cannabis columnist Leland Rucker.
O.pen VAPE's Todd Mitchem with Boulder Weekly cannabis columnist Leland Rucker.
Photo by Christine Cool

Update below: Back in January, as part of a post about a marijuana tour hosted by O.penVAPE, a Denver-based firm whose vape pens and other products have been acclaimed by cannasseurs across the planet, we published the photo above, in which company chief revenue officer Todd Mitchem can be seen enjoying some herb just after recreational use became legal.

The image doesn't suggest that Mitchem would be in favor of drug-testing his employees -- but in April, the firm announced that it would be doing exactly that. The result was a month of controversy, with a well-known pot advocate jousting with Mitchem on social media over the approach. Now, however, O.penVAPE has amended its policy and the critic is praising Mitchem for doing the right thing.

The profile pic on the O.penVAPE Facebook page features the company's logo over a Colorado landscape.
The profile pic on the O.penVAPE Facebook page features the company's logo over a Colorado landscape.

Here's the opening paragraphs from an April 17 press release about the drug-testing approach:

Following U.S. Attorney General Eric Holder's public comments that he would work with Congress to reexamine how marijuana is scheduled, O.penVAPE, the largest brand in the cannabis industry, has announced it will begin testing its employees for dangerous drug abuse.

Todd Mitchem, O.PenVAPE's chief revenue officer and public spokesperson, said the company wants to lead by example and reinforce the important differentiation between cannabis and other scheduled drugs.

"Unlike dangerous drugs, cannabis can be part of a healthy lifestyle that promotes wellness," Mitchem said. "We always encourage consumers to use cannabis responsibly, and, as such, we have implemented a stringent drug policy for our own employees. O.penVAPE understands that, as the largest brand in the cannabis industry, our view holds weight -- and our view is simple: we won't tolerate dangerous drug use by our employees."

It should be noted that Mitchem doesn't single out cannabis as a "dangerous drug" and argues that the DEA's continued listing of it as a Schedule 1 narcotic is wrong. But he also made it clear in the release that O.penVAPE staffers were not allowed to use pot immediately before or during work.

Tom Angell in a 2012 photo.
Tom Angell in a 2012 photo.

Among those taking issue with O.penVAPE's policy was Tom Angell, head of the advocacy organization Marijuana Majority and a regular presence in Westword posts. As documented by a post published earlier this month by CelebStoner.com, Angell tweeted Mitchem the following: ""Can we talk about @openvape drug testing policy ASAP in lieu of public campaign/petition against it." (Angell says he and fellow critics considered launching a Change.org petition on the subject.)

Mitchem's reported reply: "We are keeping people safe. So sorry you don't care about employee safety. Grown ups need to behave differently."

More Twitter back-and-forths followed. Here's how CelebStoner synopsizes Mitchem's responses:

"I guess I missed the memo where the MJ community was fighting for employers embracing the abuse of dangerous drugs.... The point here is that we must teach the public cannabis doesn't belong in the same category as dangerous drugs.... The strategy was careful to support mainstream cannabis use but protect the industry from dangerous accidents.... We're also against the war on drugs, it's a failure. But we want to keep our team safe. We are aligned with you.... I love this industry. I use cannabis. I want my team to be safe at work. I respect you all.... As a community & industry we all agree War on Drugs has failed. Lets put our minds together on how to address work place safety."

Nonetheless, controversy over O.penVAPE's position continued to roil, and eventually the company agreed to take part in a conference call with Angell and representatives of other marijuana-advocacy groups, including NORML. The result is a brand new drug policy that's far less harsh. We've reproduced the old and the new policies below in their entirety, but here are a couple of telling excerpts.

First, here's a passage from the old policy:

All employees should report evidence of cannabis, alcohol or dangerous drug abuse to their supervisor immediately. In cases in which the use of cannabis, alcohol or dangerous drugs creates an imminent threat to the safety of persons or property, employees are required by O.penVAPE to report the violation. Failure to do so may result in disciplinary action, up to and including termination of employment.

Compare that to the following section from the new policy:

The Company supports an employee's freedom to choose legal substances in their off-work time. However, employees are prohibited from consuming legal but impairing substances, including cannabis and alcohol, during working hours, including during meal and break periods. This does not include the legal, authorized and responsible use of cannabis and alcohol at Company-sponsored functions or activities.
Todd Mitchem.
Todd Mitchem.

Mitchem's latest tweets have been effusive in their praise for the Marijuana Majority, NORML and others that had challenged the policy.

Angell, meanwhile, shared the following comment with us via e-mail.

"This started off as a really unfortunate incident of drug-war ignorance but ended up being a positive learning experience," he writes. "What happened here shows that even among those allies who 'get it' with respect to marijuana, there's still a lot of internalized stereotypes and misinformation about other drugs, the people who use them and the fairness and effectiveness of the policies that purport to prevent and treat abuse of those substances.

"The real takeaway here is that it's important for companies in the emerging legal marijuana industry to know that the activists who worked so hard to enact the laws that their businesses are built on will be around to monitor implementation and make sure it lives up to the principles that our drug policy reform movement has fought for so long to make into reality," he continues. "While O.Pen Vape truly erred with their initial policy, they deserve thanks and congratulations for taking the time to hear our concerns and make things right in the end."

Update: Shortly after the publication of our original post, Todd Mitchem reached out and offered the following comments via e-mail.

"The intent of our policy was always to move cannabis away from other more illegal substances," he writes: "We also wanted to keep lab employees safe. What we discovered through fantastic debate was that the real issue was impairment. We don't want people to be impaired at work for any reason. Because of this realization, we went back to the drawing board for two weeks. It was a wonderful exercise in collaboration, which led us to something truly groundbreaking. We now have a policy that we are very proud of and that talks about real impairment awareness."

Mitchem adds that "while I did not appreciate the aggressive tone by the activists (by the way I reacted poorly also), I believe now we can all move forward together in a more conscious, collaborative manner."

He concludes: "I appreciate all of the support the O.penVAPE customers and team have shown us and I am very excited for the future as we continue to expand."

Continue to see the previous O.penVAPE drug policy and the new version.  

A look at some O.penVAPE products.
A look at some O.penVAPE products.

Here's the old policy:

SUBSTANCE ABUSE POLICY

The O.penVAPE companies ("O.penVAPE") are committed to maintaining a substance-abuse-free workplace. No employee is permitted to consume, possess, sell, purchase, or be under the influence of dangerous drugs while employed by O.penVAPE. The consumption, sale, possession, or purchase of dangerous drugs in any vehicle owned or leased on behalf of O.penVAPE or at any O.penVAPE facility that is licensed to sell cannabis is prohibited and is grounds for immediate termination.

The use of over-the-counter drugs and legally prescribed drugs is permitted as long as they are used in the manner for which they were prescribed and provided that such use does not hinder an employee's ability to safely and adequately perform his or her job. O.penVAPE does not tolerate employees who report for duty while impaired by the use of cannabis, alcohol or dangerous drugs. The consumption, sale, possession, or purchase of cannabis or alcohol in any vehicle owned or leased on behalf of O.penVAPE or at any O.penVAPE facility that is licensed to sell cannabis is prohibited and is grounds for immediate termination.

All employees should report evidence of cannabis, alcohol or dangerous drug abuse to their supervisor immediately. In cases in which the use of cannabis, alcohol or dangerous drugs creates an imminent threat to the safety of persons or property, employees are required by O.penVAPE to report the violation. Failure to do so may result in disciplinary action, up to and including termination of employment.

As a part of our effort to maintain a workplace free of substance abuse, O.penVAPE employees may be asked to submit to a medical examination and/or clinical testing for the presence of dangerous drugs. If an employee is involved in an automobile accident while working, that employee may be subject to medical examination and/or clinical testing for the presence of cannabis, alcohol, and/or dangerous drugs. Within the limits of federal, state, and local laws, O.penVAPE reserves the right to examine and test for dangerous drugs at its discretion.

As a condition of your employment with O.penVAPE, employees must comply with this Substance Abuse Policy. Be advised that no part of the Substance Abuse Policy shall be construed to alter or amend the At-Will employment relationship between O.penVAPE and its employees.

Employees found in violation of this policy may be subject to disciplinary action, up to and including termination of employment.

Signature: ____________________________________________________________________

Name: ______________________________________________________________________

Date: _____________________________

Including but not limited to: cocaine, amphetamines (speed), methamphetamines (meth), methadone, opiates (opium, heroine, morphine, fentanyl, hydrocodone and oxycodone (unless prescribed by a licensed MD or DO)), phencyclidine (PCP, Angel Dust), barbiturates (downers), benzodiazepines (benzos, downers, nerve pills, tranks), tricyclic antidepressants (unless prescribed by a licensed MD or DO)

Another O.penVAPE item.
Another O.penVAPE item.

And here's the new policy:

O.PENVAPE WORKPLACE IMPAIRMENT POLICY

The Company has vital interests in ensuring a safe, healthy and efficient working environment for our employees, and their co-workers and the clients we serve. The unlawful or improper presence or use, or being under the influence, of controlled or impairing substances in the workplace or while conducting company business presents a danger to everyone. For these reasons, we have established as a condition of employment and continued employment with the Company the following impairment policy.

Employees are prohibited from reporting to work or working while using or being under the influence of any illegal drug or controlled substance, except when the use is pursuant to a doctor's orders and the doctor advised the employee that the drug or substance does not adversely affect the employee's ability to safely perform his or her job duties.

The Company supports an employee's freedom to choose legal substances in their off-work time. However, employees are prohibited from consuming legal but impairing substances, including cannabis and alcohol, during working hours, including during meal and break periods. This does not include the legal, authorized and responsible use of cannabis and alcohol at Company-sponsored functions or activities.

Employees taking prescription medication or controlled substances (cannabis) for an illness or other legitimate medical need must notify their direct supervisor in writing of any possible effects of the medication which may impair the individual's physical or mental capabilities, and/or impair their ability to perform their job functions. The notification should also include the length of time the employee is expected to take the medication or controlled substance. This written information must be given to the direct supervisor before the employee starts work. All medical information will be kept confidential, and any breach of privacy and confidentiality will be addressed. Employees need not disclose the medical condition requiring the use of such prescription medication(s).

Consistent with its Equal Employment Opportunity & Anti-Harassment policy, the Company maintains a policy of non-discrimination and reasonable accommodation with respect to recovering addicts and alcoholics, and those having a medical history reflecting treatment for substance abuse conditions. We encourage employees to seek assistance before their substance or alcohol use renders them unable to perform their essential job functions or jeopardizes the health and safety of themselves or others. The Company will attempt to assist its employees through referrals to rehabilitation, appropriate leaves of absence and other measures consistent with the Company's policies and applicable federal, state or local laws.

Your employment or continued employment with the Company is conditioned upon your full compliance with the foregoing impairment policy. Any violation of this policy may result in disciplinary action, up to and including discharge.

Impairment Testing Policy

The Company recognizes that certain circumstances might trigger the need for impairment testing, including specifically when employees hold certain "Safety Sensitive Positions" within the Company. The Company is also sensitive to civil liberties concerns implicated by testing, and the perception of asking employees to "prove their innocence" through a drug test. The Company further acknowledges that factors other than controlled or impairing substances, such as stress, sleep deprivation, and personal difficulties, can impair an employee's ability to perform the essential functions of their jobs.

The Company welcomes all comments and suggestions on this impairment testing policy, which will remain subject to amendment as often as needed to achieve an appropriate balance between overreaching intrusiveness and ensuring that the workplace is a safe and productive environment. With these considerations in mind, the Company has developed the following tiered impairment testing policy.

***********************

Impairment testing, when deemed appropriate to use (see below), and after a baseline has been established, may take place in two stages. First, employees may be asked to perform a computer-based impairment testing administered by a company specified and approved by management. The Company has designated Bowles-Langley Technology as an initial approved computer-based impairment test provider. The Company is not responsible regarding the results of computer-based impairment tests. Based upon the results of the computer-based impairment testing, employees may subsequently be asked to participate in a substance testing process as set forth herein.

Management retains discretion as to whether, when, and what type of impairment testing is utilized -- such discretion to be used consistent with the terms of this Workplace Impairment Policy.

All employees who are employed in Safety Sensitive Positions may be subject to impairment testing. Safety Sensitive Positions include employees working in state licensed medical marijuana and retail marijuana facilities. Per Colorado State law, no licensed employee may consume or be under the influence of any substance while working in a state licensed facility.

Non-scheduled computer based impairment testing may also be required for all employees whenever Company management has a reasonable suspicion that an employee is in direct violation of any part of the drug abuse policy or otherwise is impaired. "Reasonable suspicion" means an articulable belief based on facts and reasonable inferences drawn from those facts that an employee is under the influence of illegal drugs or controlled substances. Specific designated acts of conduct can create a reasonable suspicion or trigger a request for an impairment screen.

Circumstances which could constitute a basis for determining reasonable suspicion may include, but are not limited to:

• Abnormal or erratic behavior on the part of the employee; • Information provided by a reliable and credible source; • Direct observation of illegal drug or controlled substance use; or • Presence of the physical symptoms of illegal drug or controlled substance use (i.e. glassy or bloodshot eyes, slurred speech, dramatically impaired coordination or reflexes, etc.).

EMERGENCY CAUSE

The Company shall also mandate testing if an employee has been involved in a work-related accident that involves any injury or involves property damage and where a possible cause or contributing factor to such accident, damage or injury is the consumption of impairing substances, sleep deprivation, prescription medications, and alcohol.

If any employee refuses to take an impairment test, that refusal may constitute grounds for immediate termination of employment. If an employee fails an impairment test and feels that the results are wrong, the employee can, at his own cost, retake the test immediately. The employee will not be allowed to work until the re-test result comes back. Any employee who fails an impairment test will be asked to meet with The Company's therapist to see what if any appropriate next steps are needed.

***********************

It is the intent of the Company to follow the guidelines of our policy, which instructs and informs all our employees of impairment abuse in the workplace. Our concern is to assure that all employees report to work in condition to perform their duties safely and efficiently. Employees in violation of this policy may be subject to disciplinary action, including immediate dismissal. Upon signing the acknowledgement of receipt and understanding of this Employee Handbook and Policy Manual, all employees are acknowledging their understanding of, and commitment to, this policy.

For more information, please speak to [XXXXX].

Send your story tips to the author, Michael Roberts.

More from our Marijuana archive circa January 2: "O.pen VAPE's marijuana tours of Denver launches on legalization day."


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