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 federal Americans with Disabilities Act 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. “Every indicator points to a continued increase in the use of marijuana in the workplace,” says Amy Ronshausen of Drug Free America Foundation, St Petersburg, Florida. (www.dfaf.org).
For a growing number of individuals, cannabis has become the illicit drug of choice. “Marijuana is the second most widely abused substance nationwide, after alcohol,” says Ronshausen. “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 percent admitted to daily use and more than 13 percent use it more than once a month.”
“Typically, states will first pass legislation legalizing medical marijuana. Later they allow its recreational use,” he explains. Thirty-three states now have medical marijuana statutes. Eleven states plus the District of Columbia allow both recreational and medical use of marijuana.
Legalization makes marijuana more socially acceptable. “When a substance is legal and has massive amounts of marketing behind it, there are going to be more consumers,” says Ronshausen.
A costly habit
For employers, the downsides of marijuana are clear. “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 (workingpartners.com).
Unfortunately, designing workplace policies that call for 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 (caldwelleverson.com). 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.”
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.
“Some state marijuana laws are more favorable toward employers, and others are more favorable toward employees,” says Reilly. “For example, in some states you cannot discriminate against workers in non-safety sensitive positions who need marijuana for medical reasons. In such cases, allowing offsite smoking 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.”
Another: “In Illinois, the statute says that employers can have zero tolerance policies for marijuana use and can test for marijuana,” says Smith. “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 can often be mitigated by case law – that vast body of rules arising from court actions in every nook and cranny of the nation’s legal universe. Unfortunately, there is little help from this channel when it comes to marijuana use. Says Caldwell: “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.”
Employers at one time could fall back on a general appeal to the federal ban on marijuana, figuring it trumps 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,” says Caldwell. “Employment is generally a state matter.”
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 Reilly.
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.”
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 Caldwell. “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. 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
One thing is for sure: Employers may still outlaw 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,” says Reilly. “Nothing in the statute prevents an employer from maintaining a drug-free workplace, whether for medical or recreational purposes.”
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:
“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.”
And putting a halt to testing is no panacea, says Caldwell. “Not testing poses its own risks – such as decreased productivity and employee safety issues.”
Communicate with employees
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.” Suppose, for example, an operator of a forklift or other heavy equipment is seen to be acting in an erratic manner that might suggest use of marijuana or other 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.”
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.”
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.”
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 Smith. “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.”