How evolving regulations could affect your company's drug policies

Regulations regarding marijuana use seem to be changing so rapidly that it’s difficult to keep up. More than half of the United States has now legalized some form of marijuana use. Currently, 34 states and the District of Columbia (D.C.) permit the use of marijuana for either medical or recreational purposes, or both. In 10 states and D.C., the use of recreational marijuana is lawful.

Moreover, most of the major Democratic presidential candidates, except Joe Biden, support legalizing marijuana. So, it is possible that this year’s presidential election will completely rewrite the law on marijuana use in the U.S.

The Stats on Marijuana

The majority of Americans have accepted the idea that marijuana use should not be legally penalized. Not surprisingly, almost two-thirds of millennials hold that view. In fact, a recent study found that more than 22 million people in the U.S. used marijuana within the past month. Despite the increase in legalized marijuana, it is still illegal in many states and, more importantly, under federal law.


 

The federal Controlled Substances Act classifies marijuana as a Schedule 1 drug, along with LSD and heroin. Despite the surveys that confirm declining objection to marijuana use, there is not currently a lot of support for its national legalization.

Marijuana will likely remain an unlawful controlled substance under federal law for at least the time being. However, the climate is changing.

Marijuana at Work

The issue causes the greatest concern regarding the potential effects of both medical and recreational marijuana use in the workplace. It is difficult to definitively quantify the effect marijuana use has on productivity and safety.

However, a National Institute on Drug Abuse study found that employees who tested positive for cannabis had 85% more injuries, 55% more industrial accidents, and 75% higher absenteeism rates.

Until recently, challenges to employee terminations for testing positive for marijuana were almost always dismissed and justified under employers’ drug-free workplace policies.

 

In some cases, the termination was challenged under state laws that provide protection for personal conduct away from the workplace. The courts consistently ruled that since marijuana was unlawful under federal law, the enforcement of a drug-free workplace policy banning marijuana’s presence was permissible despite the state law. However, that is no longer the case in an increasing number of states.

State Law & Marijuana

While maintaining drug-free workplaces has long been the rule for most American businesses, there has been a rapidly developing trend for states to include explicit employment protections as medical marijuana laws have been adopted or amended.

A few states have excluded “safety-sensitive” jobs. For example, state regulations in Massachusetts list almost 300 positions as “safety-sensitive” and exempt from protective statutory legislation. However, 14 states currently have some form of protective language for medical marijuana use.

For example, Alaska, Arizona, Delaware and Minnesota forbid employers from firing or disciplining workers for testing positive for marijuana. In addition, on Jan. 1, 2020, Nevada became the first state in which employers may not deny employment to an applicant who tests positive for marijuana on a pre-employment drug screen.

The Massachusetts Supreme Court was the first to permit the state’s disability discrimination law to be used to challenge a termination decision affecting a medical marijuana user after an employee in question used medical marijuana away from work as part of the treatment for a disabling condition.

 

The legal rationale applied by the Massachusetts court is consistent with the increased workplace protection afforded to disabled employees and has now been followed in Connecticut, New Jersey and Rhode Island, as well. Other states may soon follow. It is especially likely in three West Coast states—California, Oregon and Washington—which were among the first to legalize marijuana use and have developed large-scale marijuana industries.

In addition, the costs attendant to the use of medical marijuana have recently become reimbursable medical expenses under the workers’ compensation rules of Connecticut, Maine, Minnesota, New Jersey, New Hampshire and New Mexico. This trend is likely to spread to other states that permit the use of medical marijuana.

OSHA & Marijuana

Until early 2019, the Occupational Safety and Health Administration (OSHA) had adopted a troubling approach to employer post-accident drug testing under its rules on the reporting of work-related injuries. It interpreted the rules as prohibiting post-accident drug testing as retaliatory and unlawful unless the facts indicated that on-the-job drug impairment may have played a role in the accident.

A major problem for employers is that there are currently no viable tests to confirm actual impairment by marijuana use. Virtually all current testing procedures check for the presence of marijuana metabolites. Unlike some other drugs, the active ingredient in marijuana, THC, is detectable for 30 days or even longer, depending on the type of test used.

For example, hair follicle testing can reveal marijuana use as far back as 90 days. However, tests for levels to confirm “impairment” are a work in progress. OSHA’s interpretation of its rules on post-accident drug testing were recently rescinded by the Trump administration’s Department of Labor.

 

In October 2019, a company from northern California announced that in 2020 it will begin marketing a hand-held device similar to a breathalyzer that can run tests for both alcohol and marijuana. According to its developers, the device can detect whether someone has smoked marijuana or ingested a marijuana edible within the last 3 hours.

Drug Testing & Marijuana

Many employers have had drug testing programs in place for years, and in most cases, they have been relatively successful in keeping drugs, including marijuana, out of the workplace. In the near future, employer drug-testing policies will be challenged more than ever before.

While most employers that utilize drug testing continue to use post-accident and probable cause testing, some employers, especially in states that permit recreational use of marijuana, are eliminating pre-employment drug screening.

As experienced by employers in all industries, the inability to hire has been compounded in states that permit recreational use. In some areas, a significant number of applicants are unable to pass a drug screen due to marijuana usage, eliminating the possibility of moving forward in the interview process.

Those employers reason that probable cause (or random testing, if permitted) will eventually expose the habitual marijuana users. There is, of course, the potential for a claim of negligent hiring if an employee was to be injured by a fellow, marijuana-impaired employee. But it seems that those employers who have eliminated pre-employment drug screening are willing to take that minimal risk in the current tight labor market.

 

It is difficult to predict whether the trends to expand the legalization of marijuana and to protect its usage will continue. However, legalized marijuana has grown into a big business in several states and generates substantial tax benefits, and other states may soon want to join the party.

Prudent employers should respond to the expansion of marijuana legalization with a careful review and evaluation of their current drug testing regimen. In addition, managers and supervisors should be trained in recognizing the signs of impairment in their employees