A DRUG-FREE WORKPLACE: KEEPING UP WITH THE CHANGES

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J.R. Moody
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There’s no arguing that maintaining a drug-free workplace program is a positive choice for employers. Basic productivity aside, performing hazardous work procedures while under the influence can lead to catastrophic consequences, from severe property damage to injuries and fatalities and the business-crippling financial repercussions that follow. Additionally, there are many cases in which a drug-free workplace is a matter of state and federal regulatory compliance, such as companies which operate under federal contracts. Procedures and policies which prohibit and manage the existence of drug use or intoxication at work protect employers from both safety concerns and regulatory penalties.

The problem employers are currently facing is the momentum with which states throughout the country are legalizing marijuana use for both medical and recreational purposes. As of now, 29 states have legalized medical marijuana and five, including Washington, D.C. have legalized it for recreational use. Whether it’s now or later, chances are it won’t be long before both medical and recreational marijuana use are standard and legalized across the board, leaving employers confused about how to integrate its legality into their drug-free workplace policies.

There are a couple of leading concerns:

  1. Responding to drug testing results is more difficult. Alcohol consumption has long been legal across the country, but – depending on personal factors like age, body fat, medications, etc. – alcohol is metabolized out of the body within a matter of hours. It can be found in urine for up to three days, but in a reactive testing situation (e.g. after a workplace safety incident), it’s easy to determine whether the employee was working under the influence. With marijuana, tetrahydrocannabinol (THC) – the active ingredient in marijuana which results in the “high” – can remain detectable for 10 days for regular users, and over two months for extreme users.

The problem is that this presence of THC in the body continues far beyond the point at which its psychoactive effects have worn off. So what do you do when, while responding to an incident with a drug test, an employee tests positive for marijuana even though they may not actually have been influenced during the incident? A handful of states, including Arizona, Delaware, Minnesota, and New York, protect employees approved for medical marijuana use, placing the burden on the employer to bear proof that the employee both tested positive and was impaired at the time in question. Making the correct and legal determination can be confusing.

  1. How do employers deal with employees carrying a medical marijuana license? Because the purpose of medical marijuana use is to alleviate debilitating symptoms of illness or disability, it may be difficult to determine whether their medical use is an appropriate grounds for the rejection of employment. Traditionally, employers may deny employment to job candidates whose pre-employment drug screenings produce positive marijuana results. However, this strict stance becomes muddled when employers are faced with the question of disability – that is, can you deny employment based on medical marijuana use when it skirts dangerously close to disability discrimination protections, or penalize them for testing positive after a random drug test?

This question becomes even more frustrating when we see that the vast majority of states with some degree of marijuana legalization are intentionally vague or ambiguous on the issue. In Maine, for example, employers may not reject solicitations for employment based exclusively on the applicant’s medical marijuana use, but the state says nothing about how to respond to a drug test with positive results.

Unfortunately, since the minute details of marijuana use vary greatly among the states in which it’s legal, it’s nearly impossible to soothe the worries of every employer with a single, concrete suggestion. That’s the bad news. The good news is that even in states with the most relaxed stance on marijuana use, it appears so far that employers are favored in court decisions allowing them control over their own drug policies. A federal trial in Washington concluded with a court statement that the state’s Medical Use of Marijuana Act does not prevent employers from terminating an employee for medical marijuana use. In Montana, Johnson vs. Colombia Falls Aluminum Co., LLC resulted in a Montana Supreme Court iteration that “the Medical Marijuana Act provides it cannot be construed to require employers to accommodate the medical use of marijuana in any workplace.”

That said, we can provide a few broad suggestions, both for employers in states where legalization has already passed and for those expecting it in the near future:

  • Consult your legal counselor. They can help you examine your drug testing limitations on both a federal and state level.
  • Continue to enforce your zero-tolerance policy regarding working while under the influence.
  • Thoroughly review your current Drug-Free Workplace Program. This is the time to give your policies a full scan down to the tiniest detail. You should ensure your company’s stance on impairment and marijuana use off the clock is clear. Expand your language on the topic of marijuana, rather than lumping it in with all other substances.
  • Apply testing policies fairly and uniformly to all employees.
  • Employees are likely to have many of the same questions as employers – communicate your policy with them and encourage questions and participation.

Safety is our bottom line. If you need assistance reviewing your Drug-Free Workplace Program or need guidance through the confusion, contact us by visiting www.safetyservicescompany.com.

 

 

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