New Challenges to Addressing Marijuana and the Workplace
While most companies have a drug policy that restricts the use of recognized illegal narcotics, alcohol, and some prescription drugs, as more U.S. states legalize recreational and medical marijuana, there are new complications facing safety and HR managers. Simply put, the new marijuana drug laws, as well as OSHA’s position on post-incident drug testing, have made managing drug use in or on offices, plants, project sites, and transportation more difficult.
First and foremost, we must focus on the safety of our employees. Having someone in the workforce who is impaired creates a risk of injury or damage to self and others and must be prevented. Therefore, as individual state laws change, company managers should be reviewing and updating safety and health policies.
Recently, during an interview for Water Well Journal, I was asked my thoughts on marijuana issues in the workplace. As I acknowledged, although marijuana is still an illegal Schedule 1 narcotic under federal law, there is increasing tolerance at the state and local level to medical and recreational use of the drug. So, how does this impact company health and safety policies?
Most companies maintain their current positions on drug use, and abuse of an illegal substance or alcohol typically results in disciplinary action and counseling and could result in termination of employment. However, it is important to note that some states are starting to provide protection from disciplinary actions for employees using marijuana as medical treatment. This will probably end up being litigated in the courts to set a legal precedent. In the meantime, company managers should inform themselves of employee protections against retaliatory disciplinary actions.
Companies need to have improved and effective communication with their employees regarding internal policies and the relaxation of some state marijuana laws. With the changes to many state laws, employees might be confused and regard the casual or recreational use of marijuana as acceptable.
The current testing protocols indicate if an employee has used marijuana within the past month. However, it is difficult to say that a person is impaired even when he tests positive in blood or urine for marijuana constituents or metabolites. There is a longer residual period after a person has used marijuana than there is for an alcoholic beverage, meaning an employee can be a user on the weekend and then Wednesday afternoon test positive for marijuana even though he might not be impaired. This would be classified as a violation of drug rules and subject to disciplinary action or termination. (Compare this to an employee who drank over the weekend; he would not test positive for alcohol.) Therefore, a major concern is how to test employees not for marijuana use but for true psychological or physiological impairment from use.
Another concern for the future is how companies will tolerate within their drug use policies the possible full legalization of medical marijuana. Many companies today require employees to disclose if they are on prescription drugs that could impair their abilities while at work. Although many states are allowing marijuana to be used for medical purposes, currently doctors can only recommend medical use of marijuana, not write a prescription for it. If this changes, employers will need to rethink disclosure policies and practices. Impairment during medical use will still require consideration of the risks while on the job.
Drug use, whether for recreational purposes or by prescription, always carries with it a degree of risk while on the job—for users, their co-workers, and all others potentially impacted by their actions. As employers, we must shape strong and manageable drug policies, use straight talk with our employees, and implement management and disciplinary programs that effectively address drug use.
Helpful articles on marijuana in the workplace:
- “Why You Need a Workplace Marijuana Policy” by Will Yakowicz. Magazine. March 26, 2015.
- “The Effects of Marijuana Legalization on Employment Law” by Francesca Liquori, former NAGTRI Program Counsel. NAGTRI Journal, Volume 1, Number 2. February 18, 2016.
- “Medical Marijuana in the Workplace: Challenges and Management Options for Occupational Physicians” by Robert S. Goldsmith, MD, MPH, FACOEM, Marcelo C. Targino, MD, MPH, FACOEM, Gilbert J. Fanciullo, MD, MS, Douglas W. Martin, MD, FACOEM, FAADEP, FAAFP, Natalie P. Hartenbaum, MD, MPH, FACOEM, Jeremy M. White, JD, and Phillip Franklin, MD, MPH, MBA. Journal of Occupational and Environmental Medicine May 2015. 518–525.
Industrial Hygiene Group Manager
Nova Consulting Group, Inc.