As states legalize marijuana use, employers may be hazy about whether —
or how — they should revise drug policies
Editor’s note: BedTimes intends this article to be for informational purposes only. It is not intended to provide legal advice of any kind. Laws concerning the use of drugs and other controlled substances in the workplace vary from state to state. Please consult with legal counsel familiar with your operations before revising your workplace policies.
With the growing number of states legalizing cannabis for medical and recreational use, employers have questions. Should drug tests include marijuana anymore? If they do, and evidence of pot use pops up, should employees be penalized? And further: Do employers have to accommodate the medical use of marijuana under the federal Americans with Disabilities Act or other state laws?
Such questions are moving to the front burner as “every indicator points to a continued increase in the use of marijuana in the workplace,” says Amy Ronshausen, executive director of the Drug Free America Foundation in St. Petersburg, Florida.
“Marijuana is the second-most widely abused substance nationwide, after alcohol,” Ronshausen says. “According to a survey by DrugAbuse.com, more than one in five respondents said they use marijuana recreationally at work during work hours. Nearly 5% admitted to daily use and more than 13% use it more than once a month.”
Legalization has made marijuana use more socially acceptable, says Joe Reilly, president of Joe Reilly & Associates Inc., a drug testing consulting firm in Melbourne, Florida. “The legalization of marijuana on the state level has continued to grow since California first allowed the drug’s use for medical purposes in 1996. Typically, states will first pass legislation legalizing medical marijuana. Later, they allow its recreational use.”
Thirty-three states now have statutes allowing for medical marijuana use. Eleven states, plus the District of Columbia, allow recreational and medical use of marijuana.
“When a substance is legal and has massive amounts of marketing behind it, there are going to be more consumers,” Ronshausen says.
For employers, there may be downsides of marijuana use by workers. “Workplace drug abuse is costly in terms of lower productivity, higher tardiness and absenteeism, greater use of medical benefits, and increased incidents of pilferage and shrinkage,” says Dee Mason, president of Working Partners, a consulting firm based in Canal Winchester, Ohio.
Unfortunately, designing workplace policies that lay out appropriate responses to marijuana use is easier said than done.
“Employers are struggling to adapt to changes in state marijuana legislation,” says Faye Caldwell, managing partner of Caldwell Everson PLLC, a Houston-based employment law firm specializing in workplace drug testing. The biggest problem is that marijuana laws vary so widely by state. “Each state has different requirements for employers, and many of the laws are quite vague,” she says.
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, Caldwell says. But beyond that framework, there is little commonality.
“Some state marijuana laws are more favorable toward employers, and others are more favorable toward employees,” Reilly says. “For example, in some states you cannot discriminate against workers in nonsafety-sensitive positions who need marijuana for medical reasons. In such cases, allowing offsite smoking (or other use) might be a workable accommodation. In other states, you may be allowed to terminate a worker for medical use of marijuana, even if he or she is not in a safety-sensitive position.”
Furthermore, some laws are complex. “In Nevada, the law says that employers cannot refuse to hire someone who is using marijuana legally in the state,” says Donna R. Smith, regulatory compliance officer in the Tampa, Florida, office of Workforce QA, a nationwide third-party administrator of drug-free workplace programs. “On the other hand, the same law states that once the employee is hired, the employer can test for drugs and terminate for positive results, if the employer has announced that no marijuana use by employees will be tolerated.”
Another: “In Illinois, the statute says that employers can have zero-tolerance policies for marijuana use and can test for marijuana,” Smith says. “But employers cannot take any action against employees unless it can be proven they used the marijuana on company property while on duty or were impaired by marijuana use while on duty or used marijuana while on a call to perform customer services.”
Legal confusion sometimes can be cleared up by case law — that vast body of law based on the precedents set by judicial decisions in previous cases. Unfortunately, Caldwell says, “because the laws are so new, there is not a lot of fill-in detail that might come from a history of court cases or other regulatory action.”
At one time, employers could fall back on the federal ban on marijuana, figuring it outweighs state law. No longer. “The fact that marijuana use is federally illegal, as a criminal matter, does not mean that states cannot legislate employment status,” Caldwell says. “Employment is generally a state matter.”
Employers also need to be aware that some municipalities have passed marijuana legislation. A new ordinance in New York City allows marijuana testing only for safety-sensitive positions.
If employers must deal with a patchwork of laws, the result often is confusion that delays formulating and implementing workplace drug policies. “Business leaders have not really been talking about this topic as they should,” Reilly says. “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 businesses design policies that create safe workplaces while protecting themselves from lawsuits? “I encourage employers to seek legal counsel,” Reilly says. “Then decide how the business’ current workplace policies need to change to conform to state laws.”
Reilly points out some common areas to consider. “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 them by moving them to safer positions when possible?”
The answers to those questions must conform to state law, but employers also should be sensitive 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,” Caldwell says. “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.”
She continues: “Employers need to reach some sort of balance between the creation of a safe workplace and the risk of litigation. 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. 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.”
Testing for marijuana
As mentioned earlier, employers may prohibit on-site use of marijuana. “In states where marijuana is legal, you can still ban its use in the workplace, just as you can with alcohol,” Reilly says. “Nothing in the statute prevents an employer from maintaining a drug-free workplace, whether for medical or recreational purposes.”
That may sound good on the surface, but a complication 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,” Ronshausen says. “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. But here is another complication: No marijuana test has been devised that definitively indicates 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,” Caldwell says. While blood tests can reveal the level of marijuana, currently no consensus exists as to what level signifies impairment.
Indeed, 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,” Caldwell says. (THC is the principal psychoactive component 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.”
Because of the complexity of testing, maze of laws and limited availability of workers, “some employers are deciding to stop testing for marijuana,” Caldwell says. “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.”
But putting a halt to testing is no panacea. “Not testing poses its own risks, such as decreased productivity and employee safety issues,” she says.
Indeed, a total testing ban can keep an employer from determining if an 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,” Reilly says. “They should also test anytime an employee is exhibiting signs and symptoms of some drug influence.”
If testing alone may not be conclusive, how does an employer know an employee is impaired by marijuana use? “There is no exact answer,” Caldwell says. “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.” Suppose, for example, a truck driver or operator of heavy equipment acts in an erratic manner that might suggest use of marijuana or another drug. “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,” she says. These policies, like any that touch on drug use, must be approved by an attorney knowledgeable about your state laws.
Communicate with employees
Whatever the decision a business makes on drug policies, communicating those policies to its workforce is critical. “I like a lot of transparency on this topic,” Caldwell says. “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 use the substance. “I encourage employers to have candid conversations with workers who are using marijuana,” Caldwell says. “Talk with them about when they use it, how they use it and what to do to avoid being impaired on the job.”
A successful marijuana policy will be tailored to the specific needs of an employer’s workplace. To avoid costly errors, experts advise seeking legal counsel, considering state laws, updating policies and educating employees.
“There is no one-size-fits-all answer to the question of a workplace marijuana policy,” Caldwell says. “We are still in our infancy on this topic. The biggest challenge right now is uncertainty.”