CHICAGO — Illicit drugs are increasing in the workplace. And marijuana is leading the way. What should employers do?
The answer has become more complicated with the growing number of states legalizing cannabis for medical and recreational use.
Should drug tests even include marijuana anymore? If they do, and evidence of marijuana use pops up, should employees be penalized? And further, do employers have to accommodate for the medical use of marijuana under the Americans with Disabilities Act (ADA), or state human rights laws?
Such questions are moving to the front burner as employers face a greater risk than ever from a growing culture of impairment that shows no signs of tapering off any time soon. Workforce drug positivity hit a 14-year high in 2018, according to a new analysis from Quest Diagnostics, a leading provider of drug test information.
Two things are certain: In every state it is allowable to have a policy that prohibits the use of marijuana on the job, and prohibits an employee from being impaired while on the job, says Caldwell. But beyond that common framework, variety abounds.
WORKABLE POLICIES
If employers must deal with a patchwork of state and city laws, the end result is often a confusion that causes delays in formulating and implanting workplace drug policies. “Business leaders have not really been talking about this topic as they should,” says Joe Reilly, president of his own drug testing consulting firm in Melbourne, Fla. (www.joereilly. com). Delay can be costly. “Companies that do not invest the required time and effort to adjust their workplace policies end up making hasty employment decisions. And those often lead to lawsuits. Maybe they get sued, for example, for terminating or denying employment to someone who fails a marijuana drug test.”
So how do you design policies that create safe workplaces while protecting your business from lawsuits? “I encourage employers to seek legal counsel,” says Reilly. “Then decide how the business’s current workplace policies need to change to conform to state laws.”
Reilly points out some common areas. “Suppose your existing policy calls for termination when an employee fails a drug test. Should you change the policy to allow exceptions for legitimate marijuana medical use? And what if the employee is in a safety sensitive position, such as operating a forklift, or working on building roofs, or working with children? You cannot allow people to work in such positions while under the influence of marijuana. Will you terminate them, or accommodate by moving them to safer positions when possible?”
The answers to all of those questions must conform to state law. The specifics about current and changing laws are important, but so is a sensitivity to larger issues that can impact policy decisions.
“To come up with workable policies, employers need to evaluate the nature of their workforce, the presence of safety-sensitive work positions, and the availability of prospective employees,” says Faye Caldwell, managing partner of Caldwell Everson PLLC, a Houston-based employment law firm specializing in workplace drug testing (caldwelleverson.com). “The last factor can be of particular importance given the greater number of people using marijuana and the low unemployment numbers in many areas of the country. The employer with too restrictive policies may not be able to hire enough otherwise qualified applicants to fill the available jobs.”
The solution can often involve balancing safety with liability. “Employers need to reach some sort of balance between the creation of a safe workplace and the risk of litigation,” says Caldwell.
“Reaching that balance can be difficult. For example, an employer may be tempted to state that accommodation for marijuana use will only be provided to the extent mandated by law,” Caldwell adds. “However, that employer needs to not only look at marijuana laws, but also consider the disability and human rights laws that may provide protection in a given state.”
ARE THEY STONED?
One thing is for sure: Employers may still outlaw onsite use of marijuana.
“In states where marijuana is legal, you can still ban its use in the workplace, just as you can with alcohol,” says Reilly. “Nothing in the statute prevents an employer from maintaining a drug free workplace, whether for medical or recreational purposes.”
That sounds good on the surface. But a problem has arisen with the packaging of marijuana in new forms. “We are not just talking about a joint, which would be easy to see and smell,” says Amy Ronshausen, executive director of Drug Free America Foundation, Inc., St Petersburg, Fl. (www.dfaf.org). “We also have products like granola bars, soda and candy that contain marijuana. Without actually looking at the packaging how would you know employees are using the drug?”
One way to spot use is, of course, to test. We have already seen that states are complicating this issue with a patchwork of laws that dictate when testing can and cannot be used. And there’s another problem: No marijuana test has yet been devised that can indicate impairment. That’s a big difference from alcohol testing.
“Normal workplace drug tests can only reveal that an employee has recently used marijuana — not that the employee is actually impaired at any given point in time,” says Caldwell.
While blood tests can reveal the level of marijuana, currently no consensus exists as to what level signifies impairment.
Indeed, the new methods of ingestion can result in blood test variances. “While smoking marijuana can result in a quick spike in THC blood levels, that is not the case for other methods of ingestion,” says Caldwell. (THC is the principal psychoactive constituent of cannabis). “While ingesting marijuana as an edible, some people might appear very impaired, but their blood levels of THC might never climb very high.”
If it all sounds too complicated, why not just avoid the issue as much as possible? “Some employers are deciding to stop testing for marijuana, because of the complexity of the issues, litigation risk and limited availability of workers,” says Caldwell. “And in those states that prohibit adverse employment action for off duty recreational marijuana use, employers may wonder if any purpose at all is served by such testing.”
Whether a test ban is a good idea depends on the laws of the state or states where your business is located, and the nature of your business.
But putting a halt to testing is no panacea, says Caldwell. “Not testing poses its own risks — such as decreased productivity and employee safety issues.”
Indeed, a total testing ban can keep the employer from determining if a certain accident was caused by marijuana use. “If I were advising an employer who was adamant about dropping their marijuana testing, I would urge them to at least test for marijuana post-accident,” says Reilly.
“They should also test any time an employee is exhibiting signs and symptoms of some drug influence.”
TALK TO YOUR TEAM
Testing, then, may not disappear from the workplace anytime soon. But if testing alone can’t cover all the bases, how does an employer know an employee is impaired by marijuana use?
“There is no exact answer,” says Caldwell. “I encourage my clients to train supervisors to spot behavior that is characteristic of impairment, and to have policies that call for specific steps to take. Your policy might call for steps such as writing a report on what is observed, having the employee take a drug test, and removing the employee temporarily from duty.”
These policies, like any that touch on drug use, must be approved by an attorney knowledgeable about your state laws.
Whatever the decision your business makes on drug policies, communication with the workforce is critical. “I like a lot of transparency on this topic,” says Caldwell. “Let your employees know your policy and if it calls for accommodation. And give people the opportunity to do the right thing by telling them they cannot come to work impaired and they cannot use marijuana in the workplace.”
Take extra care with those employees who have said they are imbibing the substance. “I encourage employers to have candid conversations with workers who are using marijuana,” says Caldwell. “Talk with them about when they use it, how they use it, and what to do to avoid being impaired on the job.”
INSURANCE RATES
As we have seen, the growing number of state laws legalizing marijuana is causing an increase in the use of the drug by employees. Will that translate into higher rates for employers’ liability and workers compensation insurance? Experts say it’s too early to tell, but the answer could well be yes.
“It could take a few years, but we anticipate higher insurance rates in those states legalizing marijuana,” says Ronshausen. “In a study reported by the National Institute on Drug Abuse, U.S. employees who tested positive for marijuana had 55 percent more industrial accidents, and 85 percent more injuries, than employees who tested negative.” Insurance rates go up for employers who experience more accidents.
Rates may also increase for a related reason. “In those states that offer workers compensation insurance discounts to employers who maintain drug free workplaces, drug testing is required — and it must include testing for marijuana,” says Dr. Donna R. Smith, regulatory compliance officer in the Tampa Bay, Fla., office of Workforce QA, a nationwide third-party administrator of drug free workplace programs (wfqa.com). “If employers decide to not test for marijuana, they risk losing their insurance premium discount.”
The successful workplace policy will be tailored to the specific needs of an employer’s workplace. To avoid costly errors, experts advise seeking legal counsel, looking at your state laws, updating your policies and educating your workforce.
“There is no one-size-fits-all answer to the question of a workplace marijuana policy,” says Caldwell. “We are still in our infancy on this topic. The biggest challenge right now is uncertainty.”
To read Part 1, go HERE.
Have a question or comment? E-mail our editor Dave Davis at [email protected].