By Eric Wokas, Risk Control Consultant
According to the US Food and Drug Administration, marijuana is a controlled substance. Other federal agencies including OSHA and nongovernmental groups such as workers’ compensation underwriters all support ﬁrm and consistent testing and regulation.
However, this is all changing with the expanding legalization of medical cannabis and adult-use recreational marijuana.
Marijuana is now legal in nine states, Washington, DC, and perhaps within the next two years, New Jersey and several other states. This means that soon, more than one in four American adults will be able to eat, drink, smoke or vape marijuana as they please.
Employers have always been able to test job applicants and employees for the presence of marijuana in their systems. If a company had a firm drug policy in place, they could discipline or fire you.
Now, the employer’s problem is how to handle marijuana testing and marijuana use during work hours. As noted by attorneys Timothy P. Van Dyck and Nathaniel Nichols at Edward Wildman Palmertate, “this uncertain regulatory scheme places employers in the delicate position of attempting to comply with divergent laws while maintaining order and safety in the workplace.”
The dramatic developments of legal medical and recreational marijuana, and the resulting focus on testing employees for marijuana, provide an important opportunity to reevaluate all workplace drug-testing practices and to update drug-testing procedures — not only for marijuana but for other substances both legal and illegal.
Employers should conduct competent legal reviews of their drug-free workplace policies and programs by consulting attorneys who are familiar with applicable federal, state and local laws. When developing a drug-free workplace policy, employers should be aware that the presence of THC (the active ingredient in marijuana) in the body may not indicate someone is presently impaired. THC can be detected for several days — or even weeks, if the employee is a “frequent user.” This is important because as part of your policy review, you need to articulate whether you wish to ban all employee drug use or merely impairment.
Make sure you are prepared to consistently follow your stated procedures.
Make sure you have communicated your policy to all employees and clearly state what is expected of them.
Train your managers about confidentiality relating to sensitive employee information — including drug-test results and requests for accommodations for medical conditions for which marijuana is prescribed (especially under state law).
If you choose to have a zero-tolerance policy, you should be prepared to answer additional questions: How will you handle employee recreational use that is permitted by law? Will you look to federal law to justify a true zero-tolerance policy? Are you an organization that has federal contracts? How difficult will it be to recruit candidates in a tight labor market?
If your company is willing to accept a THC-positive reading, there are a number of efforts underway to develop an accurate method — akin to the Breathalyzer for alcohol — to measure actual marijuana impairment. Such a test would be useful not only for employers but also for police and prosecutors trying to determine what constitutes driving under the influence of marijuana.
So what do you do when someone tests positive?
While termination is still an option, when you consider the costs of employee turnover, support through an Employee Assistance Program (EAP) is often the most cost-effective solution. An EAP may include confidential access to treatment, changing the employee’s job temporarily if the employee is treated while remaining at work, or reintegration into the workplace after successful treatment.