Addressing Marijuana Use

Employees

As more states legalize the drug, employers in the manufacturing sector have some decisions to make.
By Steve Sawin

Imagine you have an employee who reports to work on time every day, completes his duties as assigned, and leaves every day without causing any problems. Now imagine that this employee occasionally smokes marijuana on the weekends. Does your opinion of his work change?

This isn’t just a hypothetical situation for many employers, including many manufacturers. As more states pass laws legalizing marijuana use, employers may need to amend their employment policies.

The confusing state of American marijuana laws
Marijuana is legal for medical use in more than half of American states. In eight states, the drug is legal (or will be soon) for recreational use.

However, possession of marijuana is still illegal under federal law, and this seems unlikely to change under the Trump administration. In February, Attorney General Jeff Sessions told reporters: "My view is that we don't need to be legalizing marijuana."

State legislatures have not ceased their movement on this issue, however. Legislators in Delaware recently introduced a bill to allow adults over 21 to purchase marijuana for medical use. West Virginia’s legislature is establishing a Medical Cannabis Commission. This week, the governors of four states with legalized marijuana sent a memo to Attorney General Jeff Sessions asking the Justice Department to let them be.

Society pays a high price when individuals are arrested with small quantities of marijuana. In 2010, before state laws legalized recreational marijuana, the American Civil Liberties Union estimated that states spent over $3.6 billion dollars enforcing marijuana possession laws. In 2015, there were more than 574,640 arrests nationwide just for marijuana possession, FBI data show.

What is the state of drug use in manufacturing?
Government surveys suggest that 7.4 percent of workers in manufacturing have used illicit drugs in the past month. Marijuana is included in that estimate.

However, these data do not answer a fundamental question: Are any of these workers high on the job? If so, that’s clearly a problem. Marijuana can cause acute nausea, impaired coordination, and anxiety, none of which are conducive to employee safety or productivity.

Even regular marijuana use outside work might, in theory, affect an employee’s output. In a study, researchers at UCLA found that people who had used marijuana within the past four weeks scored lower than their peers on tests of attention/working memory, information processing speed, and executive functioning.

For the occasional, casual marijuana user, the implications are less clear.

What are the safety and liability considerations?
Manufacturers should consider the safety risks that could stem from impairment at work. “The potential harm of somebody whose job is clerical involving working on a computer, sending e-mails and so forth, potential impairment is more intangible than the immediate risk of someone working on an assembly line or working with dangerous tools or producing products that if manufactured incorrectly could harm people,” says Brian D. Carlson, J.D., a partner at Schwartz Hannum PC.

If your operations are safety-sensitive, a restrictive policy is likely prudent—which could mean that employees are subject to random drug testing. And if you have a federal government contract, employee drug use of any kind is not permissible.

Employees may not face criminal penalties for marijuana use in states like Colorado or Massachusetts—but that doesn’t mean employers must turn a blind eye to drug use in these states. Although employees may object to drug use policies, they don’t have a firm foundation for litigation. Marijuana remains illegal under federal law, and under the supremacy clause of the Constitute, federal law overrides conflicting state laws.
“Since marijuana remains illegal under federal law, at least to the extent that there are federal statutes are involved, I think employers have a pretty strong defense against employees claiming they have any right to use marijuana,” Carlson says.

Some states may even have special rules aimed at limiting workplace drug use. “The Massachusetts law specifically says that employees are not allowed to use marijuana on the job or possess it in the workplace or at school, for instance,” Carlson says.

If an employee uses marijuana for medical purposes, the situation could be more complicated. Federal law still supersedes the state law. However, “courts have kind of recognized that employers are between a rock and a hard place and given them leeway based on that,” Carlson says.

Some employers choose to prioritize workplace marijuana use and ignore recreational use after hours. “The big problem is with determining: What is off-duty use?” Carlson asks. “Certainly, you’re telling people not to bring it onto the worksite or use it on the worksite or anything like that, but without any reliable ways of showing whether somebody is actually impaired, that can be tricky.”

If you go that route, “be prepared to tolerate a bit of uncertainty,” Carlson says.

New laws make the situation even trickier. Arizona and Delaware have laws protecting people who use legal medical marijuana, so long as they are not impaired at work. Then again, in 2015, a Colorado court ruled that you can be fired for using marijuana even though it’s legal there. California’s Prop 64 law, passed this fall, made marijuana legal in that state—but employers still retain the right to test for it at any time. A bill filed a few weeks ago in the Oregon legislature aims to protect workers from being fired for using marijuana outside business hours.

It’s difficult to predict how future cases will land. “The general trend at least until the last election has been toward legalization and increased tolerance toward marijuana, but it’s still a little bit unclear,” Carlson says.

Still, experts in the marijuana industry are optimistic.

In a CNBC commentary published in December, medical cannabis entrepreneur Adam Bierman of MedMen predicted that a major sports league will approve the use of cannabis sometime this year. And Greenwave Advisors, a research firm for the legalized marijuana industry, estimates that cannabis could be legal in every state and Washington, D.C., by 2021.

How should you craft a drug-use policy?
To maximize safety and productivity, firms operating in states with legalized marijuana must consider whether the drug belongs in their employment policy—and if so, how.

“One thing we’ve really seen, and we have recommended to our own clients, is that a company should really determine whether it wants its usual drug policies to encompass marijuana completely or not, and just be sure to specify that,” Carlson says.

Traditionally, employee policies barred workers from possession or use of illegal drugs. Companies that want to keep marijuana within those prohibitions should spell that out in their policy. It could be as simple as just noting that you prohibit use of illegal drugs and adding “including marijuana” in parentheses.

Consider working with a drug testing program company, which can help you write and implement an effective, legally sound policy, says Jamie Miller, general manager at The Advantages, a human resources consulting firm with multiple offices in Pennsylvania. Find providers at the Drug & Alcohol Testing Industry Association (datia.org).

Once your policy is ready, make sure employees know about it.

“Not that I would suggest having a policy and not actually following through, but at least if you have that policy in place that employees have seen and signed off on, they understand that a drug-free workplace is important to the business,” Miller says.

How should you enforce your drug-use policy?
To assess compliance with drug-use policies, many firms use drug tests that require saliva, blood or urine samples. In some states, random drug testing is legal. In others, like California and Massachsetts, you must have cause to invoke testing.

These tests can require a substantial budget. Urine tests for drug screening cost between $25 and $50 each, estimates Verifirst, a company that does employee background checks.

One problem in including random drug testing in your policy is that employees don’t ace these tests. In a 2014 survey, manufacturing executives in Pennsylvania reported that 35 percent of employees have a serious problem with drug tests: 19 percent refuse drug tests, while 16 percent fail them. Russ Phifer, executive director of the National Registry of Certified Chemists, has heard similar sentiments—and sometimes higher numbers—from manufacturers.

One explanation for this failure rate could be that marijuana can be detected in blood and urine for weeks after use.

A drug-screening test could catch an employee who has never worked while high, but simply used marijuana sometime within the last month. Saliva tests are bit more forgiving but still detect use from three days prior.

Think about a man who had a few too many shots of whiskey at a Saturday night wedding. He will probably be fine on Monday, let alone two and a half weeks later, but a man who used marijuana instead could get busted in either of these scenarios depending on the type of testing used.

“What really makes a lot more sense to me is impairment testing, so that’s what I’ve really started to pursue, and I’m trying to convince some of these manufacturers that this is something they should be looking at,” Phifer says.

Impairment testing is a set of tests like police officers use when they pull over drivers under suspicion that they’re under the influence of alcohol. Perhaps private-sector employees should receive training to recognize impairment, he says. It’s more effective and accurate than drug testing to determine how well an employee can perform a job function, he says.

“Drug testing has way too many false positives, way too many false negatives for that matter,” he says. “It’s not reliable above about 85 percent.” Spit is typically between 90 and 95 percent effective in determining exposure, depending on the methods used.

Another wrinkle is that the same blood concentration of marijuana doesn’t cause the same impairment for each person, thanks to individual differences in metabolism. “In some people a very small concentration might result in impairment,” he says. “In other people, ten times that much may not show impairment.”

He argues that drug testing is commonplace in part because of the drug testing industry’s tactics and lobbying in Washington. “Of course they have a clear incentive to have everybody doing drug testing as much as possible,” he says.

Although it’s not uncommon to hear about failed drug tests, “I don’t hear manufacturers saying people are coming to work stoned,” Phifer says. That’s probably because impairment from cannabis lasts only up to four hours if smoked, eight if eaten.

“If the issue is ‘I can’t find good people because nobody will pass a drug test,’ then there has to be some mechanism to get beyond that, which to me means you’ve got to have some system that doesn’t detect trace concentrations that aren’t significant,” Phifer says.

In summary:
1. Consider the nature of the work being performed. If your state allows random drug testing, it may be worthwhile for those in safety-sensitive positions.
2. Craft a drug use policy that clearly states your expectations and plans for enforcement. Specify whether marijuana is included.
3. Consider testing employees for impairment, not blood or urine concentrations.

Steve Sawin is president and CEO of Operon Resource Management. Visit www.operonresource.com for more information.

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