IMA Wellness Blog

Dazed by the complexity of state and federal marijuana laws? How to maintain safety without tripping over legal obstacles.

by Donna Pryor

Husch Blackwell LLP is an IMA B2B Partner

The nation’s largest drug testing laboratory, Quest Diagnostics, recently released its latest data on the the number of workers and job applicants who tested positive for drugs in the U.S. workforce. According to the data, marijuana use in the workforce climbed 10% last year to 2.3% according to an analysis of 10 million urine, saliva and hairs samples.  As a result, employers are looking for guidance on how to best address the marijuana issue as more states legalize marijuana for medicinal and recreational use.

Rising marijuana use among U.S. workers

The Quest Diagnostics Drug Testing Index (DTI) reports on trends in drug usage by three segments of the U.S. workforce: workers who are federally mandated to undergo drug testing, safety sensitive workers, and the general workforce.  Based on positive testing results from a sample of 10 million workplace drug tests, Quest’s 2019 reports show an upward trend in marijuana usage among the U.S. workforce, Including workers in safety sensitive positions.  Among the results, the testing data established that:

  • The rate of drug positivity among workers hit a 14 year high in 2018.
  • Marijuana was one of the most “commonly detected illicit substances across all workforce categories with the highest positivity rate of all drug classes across the majority of industry sectors.”
  • Positive test results for marijuana relating to workers in safety sensitive and federally mandated testing occupations rose nearly 5% from 2017 (.84%) to 2018 (.88%) and nearly 24% since 2014 (.71%).
  • It’s been reported that “4.7% of samples sent to Quest in 2018 after an accident came back positive for potentially illicit drugs, up from 3.1%“ in 2017.

Safety hazards from the cognitive and physical effects of marijuana

The primary psychoactive component in marijuana is tetrahydrocannibus (THC) which is stored in the fatty tissue of the body and is released over a period of time from hours to weeks. Levels and length of impairment from ingestion of THC vary depending on a variety of factors such as the strain of the cannabis products and the individual’s ability to metabolize the drug. Impairment can affect various cognitive and physical functions including short-term memory, ability to process and analyze information, ability to concentrate, delayed reaction time, and altered sensory perception.

At the federal level, marijuana is listed as a schedule 1 drug defined as having “a high potential for abuse and the potential to create severe psychological and/or physical dependence.” Yet, to date, marijuana has been legalized in 33 states under state law for medical use and in 10 states as well as the District of Columbia, Guam and Puerto Rico for recreational use.

How should employers respond to safety risks?

The confusing conundrum presented by conflicting federal and state laws places employers in a difficult position when attempting to establish workplace drug policies that comply with federal and state laws. Our safety and health law experts have explained the recent legal developments and provided guidance on the strategies to set clear and detailed policies using a best practices approach. 

As Donna Pryor wrote in her column in the April issue of Coal Age regarding recent legal developments, although marijuana is not a legal drug under federal law, many states with medical marijuana laws  include anti-discrimination provisions extended job protection to medical marijuana users. Other states, however, passed medical marijuana laws with either varying degrees of protection or none at all. As a result, employers may no longer rely on a blanket “zero tolerance” policy when it comes to marijuana use by employees and by job applicants.

Instead, as Chris Ottele and Brian Hendrix recently recommended in Safety + Health, employers can follow a basic three-prong approach which considers the specific state laws that apply to the employer’s worksite. The approach generally incorporates the following strategies:

  • Adopt a policy that complies with federal law which prohibits the possession, cultivation, distribution, and to be under the influence of marijuana to continue a policy of zero tolerance drug use.
  • If state law requires employers to accommodate medical marijuana users, then account for the “emerging trend” by communicating the right of  accommodation  in the employer’s drug policy for those states.
  • For safety sensitive positions or employees who are subject to strict federal drug testing requirements, employers should relate their drug policy to the common goal of safety and prohibit marijuana use by employees in positions designated as safety sensitive positions or as positions subject to federal drug testing requirements.

Multi-state employers may have to adopt a more flexible policy to account for state and local laws that protect medical marijuana users from adverse employment actions.

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