Legalized Impairment and What Employers Can Do About It

The truth is employers still have the right to insist that employees be drug-free while at work.

• By Bill Current
• Feb 01, 2014

Nov. 6, 2012 may someday become known as the day the drug war went up in smoke. Why? That's the day voters in Colorado and Washington state decided to legalize marijuana use, and not just for medicinal purposes. They voted to legalize marijuana for so-called recreational use. The pro-legalization of marijuana movement signaled that at least four more states (Alaska, Arizona, California, and Oregon) may pass similar legislation this year, and as 2013 came to a close, 20 states plus the District of Columbia already had legalized medical marijuana. New York's governor welcomed the new year by announcing that he intended to legalize the use of marijuana for medicinal purposes by executive order, thus bypassing voters and legislators.

Yet numerous reports and studies conclude that people under the influence of marijuana are impaired in one or more ways. From these studies we know marijuana users are less safe drivers, less alert workers, and less reliable than those who do not use marijuana. The legalization of marijuana is placing employers in a tough spot. Can they continue to drug test workers and job applicants for a legal substance? And if they do, what happens when someone tests positive? Is legalizing marijuana inadvertently legalizing impairment in the workplace?

In reality, there is no such thing as legalized impairment in the workplace. This much we know:

• Marijuana is a problem in America that is getting worse, not better.
• Marijuana use has a direct impact on safety and productivity in the workplace.
• Laws that legalize marijuana use, for whatever purpose, may complicate but do not eliminate employers' rights to maintain drug-free workplaces.
• Marijuana is still classified as a Schedule 1 Controlled Substance; therefore, it is illegal under federal law.
• Employers still have the right to insist that workers not be under the influence of marijuana while at work.
• A written policy that directly addresses marijuana use by employees is a key component in any drug-free workplace program.

There is a lot of misinformation available about marijuana. The pro-legalization folks would like everyone to believe marijuana is a harmless drug that has been unfairly lumped in with obviously dangerous substances such as heroin and cocaine. Part of their argument is that marijuana should be treated like alcohol, a legal drug used by millions for recreational purposes. If that's true, consider the following:

In 2010, there were nearly 16,000 alcohol liver deaths and more than 25,000 alcohol-induced deaths, not counting alcohol-related accidents and homicides.¹ Presumably, these deaths would not have happened if not for alcohol use or abuse. The National Highway Traffic Safety Administration reported that 7,281 (67 percent) of the 10,839 people who died in alcohol-impaired-driving crashes in 2009 were drivers with a BAC of .08 or higher.²

Obviously, alcohol abuse can have fatal consequences and deserves to be monitored legally, with laws in place to protect the innocent from the abusers. Maybe treating marijuana like alcohol is appropriate, especially when you consider the truth about marijuana.

A report from 2011 found that 9.4 million persons or 3.7 percent of the population aged 12 or older, reported driving under the influence of illicit drugs during the past year.³ Because marijuana is the most abused illicit drug, it stands to reason that a lot of that driving was done under the influence of pot.

The National Institute on Drug Abuse (NIDA) claims that "marijuana use more than doubles a driver's risk of being in an accident" and that "the combination of marijuana and alcohol is worse than either substance alone with respect to driving impairment."⁴

Medical Marijuana
A big part of the movement to legalize marijuana is tied to a strategy of legalizing the drug for patients and others who suffer from a variety of physical or mental ailments. "Medical marijuana" is leading the way in the effort to remove all legal restrictions against marijuana. As of Dec. 31, 2013, 20 states plus the District of Columbia have legalized the drug for medicinal purposes, and the two states that legalized marijuana for recreational use already had medical marijuana laws in place. And while none of the 19 states have laws exactly alike, they all contain some common elements.

Part of the problem with medical marijuana is there's no way to monitor its use by a patient. Because it cannot be prescribed, a doctor cannot use his or her medical expertise to say how much marijuana should be used, how often, or for how long. They cannot say whether it should be smoked in cigarette form or inhaled from a bong. Unlike a prescription for an antibiotic, with so-called medical marijuana there's no way to tell what's in the dope that someone is using or what side effects the drug might have when that person goes to work the next morning and gets behind the wheel of a crane, a school bus, or some other heavy machinery.

Most state medical marijuana laws are relatively silent on the subject of the workplace, and this has led to problems for the pro-marijuana people. In 2012, a Michigan judge ruled in favor of Wal-Mart when it was sued by a former employee who was terminated after testing positive for marijuana. The former employee was a registered medical marijuana user in Michigan when he violated the company's policy by being at work with marijuana in his system. He argued that he wasn't high at the time, but Wal-Mart's policy wisely did not tie itself to an impossible standard of trying to prove that someone was impaired. The company simply prohibited employees from testing positive for marijuana. The Michigan medical marijuana law said nothing about private-sector rights to enforce drug-free workplace policies.

The judge ruled that the state law afford "limited protection from prosecution by the state, or from other adverse state action in carefully limited medical marijuana situations," adding, "Nowhere does the [law] state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace."⁵

As a result of this Casias case, we can expect to see medical marijuana legislation that eliminates what the pro-pot people would consider a legal loophole. The Connecticut medical marijuana law, for example, specifically prohibits employers from refusing to hire individuals due to their use of medical marijuana. The law also prohibits discriminating against any person solely because of being a registered medical marijuana user.⁶

Recreational Marijuana Use
On Nov. 6, 2012, a majority of voters in Colorado and Washington voiced their opinions loud and clear: Marijuana should be legal. It took just 30 days for Washington's governor to sign the bill and make weed legal for adults 21 and older. Colorado's law went into effect by January 2013, but it wasn't until January 2014 that it became legal to sell marijuana there. Colorado's laws contains the following provision, Section 16(6)(a): "Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees."

Washington's law, on the other hand, contains no provision about workplace marijuana use.

Employers' Response
For employers in states with legalized marijuana laws, the questions are plenty and the answers are few. Can employers still drug test job applicants for marijuana? Can employers still drug test employees for marijuana? Can employers mete out disciplinary action against an employee who tests positive for marijuana? Can employers even terminate employment when an employee tests positive for marijuana?

The U.S. Department of Transportation has issued a very clear statement on the subject of legal marijuana: "We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation's regulated drug testing program. The Department of Transportation's Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason. Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used 'recreational marijuana' when states have passed 'recreational marijuana' initiatives.

"We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use 'medical marijuana' when states have passed 'medical marijuana' initiatives. It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana."⁷

Drug-Free Workplace Policy
A company's drug-free workplace policy remains the key to success in addressing the dilemma of "legalized impairment." The truth is employers still have the right to insist that employees be drug-free while at work, that they not bring illicit drugs to work or use such substances while on the job, and that a positive drug test for marijuana can still result in adverse employment action. But the need for a well-written policy has never been greater.

A comprehensive policy will include a section on "prohibited behavior," "drug testing," and "consequences for policy violations." These three sections are critical links that must be connected when it comes to marijuana in the workplace.

A prohibited conduct section will include many different types of behavior that the company considers inappropriate. Among these should be: a) being under the influence of marijuana as defined by the company and b) testing positive for marijuana. As we learned in the Casias v. Wal-Mart case in Michigan, employers should avoid trying to prove that a worker is impaired. A drug test does not prove impairment. But a company can define the term "under the influence" to include testing positive. Hence, when someone tests positive, he is considered under the influence of the drug for which he tested positive, in this case marijuana.

The drug testing section should describe what drugs the company will test for, the cut-off levels that will be considered positive, and the testing method that will be used. Drug testing is always a good business decision, but not all drug testing methods and products are the same. Employers should be very specific in describing how drug testing will be conducted.

Consider this: Every drug has its own unique window of detection depending on a variety of factors, including cut-off levels. In states where medical marijuana is legal or the recreational use of marijuana is legal, oral fluid drug testing may be the most effective testing method. The window of detection for marijuana in an oral fluid sample begins within a few minutes after the user ingests the drug. This makes oral fluid testing an ideal "under the influence" detection method. Because the window of detection starts immediately and lasts for 24-48 hours, it makes it impossible for someone who tests positive to claim he or she used the drug Friday night when the test was conducted after the lunch break the following Monday.

Lab-based oral fluid testing is legal in all but three states (Maine, Hawaii, and Vermont). And with an FDA-cleared oral fluid collection device and lab testing system, THC, the psychoactive ingredient in marijuana, is accurately detected with lab-based oral fluid testing.

A consequences section should address what happens when a job applicant or employee tests positive for marijuana. Be clear that any detectable amount of marijuana in a drug test is a violation of the company's policy. Possible consequences include suspension, termination, mandated drug treatment, and, for job applicants, not being considered for employment with the company.

References
1. http://www.cdc.gov/nchs/fastats/alcohol.htm
2. http://www-nrd.nhtsa.dot.gov/Pubs/811385.pdf
3. http://www.samhsa.gov/data/NSDUH/2k11Results/NSDUHresults2011.htm
4. http://www.drugabuse.gov/publications/drugfacts/marijuana
5. http://metrotimes.com/mmj/wal-mart-wins-a-round-1.1109037
6. http://www.cga.ct.gov/2012/FC/2012HB-05389-R000597-FC.htm
7. http://www.dot.gov/odapc/dot-recreational-marijuana-notice

This article originally appeared in the February 2014 issue of Occupational Health & Safety.