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Medical and Recreational Marijuana High Time for Changes in Testing

Friday, December 14, 2018

The states continue to move forward with medical cannabis, recreational cannabis, or both. Currently, 33 states allow for the medical use of cannabis and 10 states permit recreational use. Additional states, including Illinois, will likely move forward, approve, and tax recreational use to fill state coffers with tax revenue.

Unfortunately, employment-related laws and practices have not kept pace with the speed at which legalized cannabis is occurring in the country. Currently, most states are silent regarding legal use and employment. Making matters worse, most forms of cannabis testing can detect the presence of the substance long after it was consumed, so individuals test positive, but are not intoxicated at the time the test is administered. Job applicants and employees who test positive for cannabis in medical or recreational states will argue they were not intoxicated at the time the test was taken. Lawsuits may force states and the federal government to weigh in quickly before things get out of hand.

The federal government still classifies cannabis as a Schedule 1 Controlled Substance. According to federal law, Schedule 1 drugs cannot be prescribed by a physician. The discrepancy between state and federal laws only adds to the confusion, particularly for companies and organizations that do business with the federal government. In fact, cannabis sales in states with medical and recreational use are cash only because federally regulated banks are prohibited from doing business with dispensaries.

Federal law still requires testing for cannabis for employers in certain industries, like transportation, so employers in those industries must continue to test for cannabis using the prescribed methods and protocols and cannot be sued for complying with federal requirements.  

We are receiving many inquiries from clients in medical and recreational states asking what they should do with their drug testing program and policies. Currently, about a dozen states have laws that prevent discrimination against medical cannabis users for off-duty use. The state of Maine prohibits employers from discriminating against employees for off-duty, recreational use. Of the 33 states that allow medical or recreational use, 21 are silent concerning employment status for off-duty use of cannabis. Some employers continue to enforce a zero-tolerance policy as a condition of employment, and for employees who test positive after random and reasonable suspicion tests. This policy can create potential liabilities. Some employees have successfully sued their employers for wrongful termination after mandatory screening revealed the presence of nicotine. The same argument will be made in states where cannabis is legal for medical or recreational use.

For most employers, safety is the reason for substance testing. Employers do not want employees working under the influence to be a danger to themselves or others. A huge issue is that current testing shows evidence of use as long as days or weeks before the test. Additionally, no scientific limits for cannabis intoxication have been established. Law enforcement agencies in states where cannabis is legal also struggle with enforcement of DUI laws and very few have established a measurable, legal level of intoxication. The absence of simple test methods and quantifiable levels of intoxication further complicate an already difficult situation.

Ultimately, employers want to avoid the dangers and issues associated with impaired employees in the workplace. Some employers are taking the lead and looking for alternatives to “traditional” drug testing by focusing on impairment instead of detecting the presence of a substance in an employees’ breath, urine, or blood. In states where cannabis is now legal, many employers have entirely suspended traditional testing for cannabis as a condition of employment, or through random and reasonable suspicion testing. A strong economy and tight labor market are helping drive changes in these policies.

Impairment encompasses much more than intoxication from drugs and alcohol and is a concern to employers where safety is critical. Does it really matter if the truck driver who hit and killed a family of five was impaired from drugs, alcohol, or a lack of sleep? Researchers are working on a variety of methods employers can use to determine if an employee is impaired for a variety of reasons, including drug use. Methods range from devices that examine eye movement to simple, computer-facilitated tests. Companies that perform this type of impairment testing report a significant reduction in the number of incidents, accidents, and injuries. Tests that identify impairment are used to prevent employees from continuing work in safety-sensitive jobs. Additional testing for drugs and alcohol may be called for based on the results of impairment testing.

Researchers are also working on technology that can quantify the concentration of the psychoactive compound in cannabis (THC) in the breath. While this technology is encouraging, scientists and drug experts will still need to establish a legal level of intoxication.

Getting the states, the federal government, and employment law on the same page will necessarily take time. Employers in states where cannabis is legal may consider dropping cannabis from the list of substances they test for, except when required by federal law. Some employers may wish to explore impairment testing, which can identify employees impaired for reasons beyond just drug and alcohol use. Employers, who make employment-related decisions based solely on detectable levels of cannabis in states where the substance is legal, risk the possibility of being sued. This is a difficult time with the real solution in the hands of both the federal and state governments.

Impairment testing, irrespective of employment implications, is of particular interest to safety professionals because it identifies employees at risk of injuring themselves and others for a variety of reasons including stress, lack of sleep, illness, personal issues, legal and illegal drugs, and alcohol. If such testing can prevent an incident, accident, or injury, it is something that all employers in safety-sensitive operations should consider.

If you are interested in learning more about impairment testing, please contact Horton Safety Consultants for information. 

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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