Marijuana is becoming legal in many States and maybe on the Federal level soon. What is the impact in your business? DOT currently prohibits all use of marijuana.
Extreme caution is advised for adverse action against an employee or applicant for a positive marijuana drug test in New York, New Jersey, Nevada and Philadelphia.
What do employers have to consider regarding marijuana in the workplace?
Marijuana, pot, hash and or weed is still considered a controlled substance due to it being illegal under federal law. Now is a good time to review our state by state guide to marijuana laws and considerations for employers in regard to workplace drug testing.
It is complicated and there are many questions to consider.
1. Are you regulated by the United States Department of Transportation (DOT) and therefore required to test employees for marijuana?
Across the United States; truck drivers, bus drivers, airline pilots, boat captains, subway workers, railroad works and others are required by the United States Department of Transportation (DOT) to participant in drug testing programs. This is the easiest of the questions. There is no choice, regulations are strict and have no flexibility. Marijuana - recreational, medical or otherwise is prohibited. The DOT drug and alcohol testing program requires testing for marijuana and 4 other classes of drugs – Cocaine metabolites, Phencyclidine, Opioids - codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone & hydromorphone and Amphetamines -amphetamine, methamphetamine, MDMA & MDA.
2. Do you have a company policy that states you will test employees for marijuana?
Your company may or may not have a drug testing policy or drug free workplace program. If you have a policy does it include testing for marijuana and what are the consequences of testing positive? Does this policy accurately reflect the desires of your company leadership? Do the consequences of testing positive for marijuana at your company line up with the laws in your state particularly when it comes to medical marijuana? Existing policies must be examined to make sure they accurately reflect what is being practiced by your human resources department in your company. In several states including Maine, Rhode Island, Connecticut and Massachusetts it is very important to discuss your policies with your attorney and properly reflect in the policy provisions that comply with the state law and provisions that will keep your company out of trouble. If your company does not have a policy regarding drug testing, now is the time to make decisions – will your company be doing drug testing or will your company elect not to perform drug testing. Will your company perhaps remove marijuana from your drug testing policy?
3. Do you do business in States that have recreational marijuana laws?
If your business is located in California, Colorado, Washington DC or several other recreational marijuana states; it is legal to ingest marijuana for personal recreational use. Similar to alcohol do you want employees coming to work smoking pot or smoking on the job? Surely the answer is No, but how do you know? Most of the recreational marijuana states have upheld an employer right to maintain a drug free workplace and test for drugs including marijuana. Please be sure to work with a professional drug testing vender or legal counsel so that you know what can be done and what can’t be done when it comes to drug testing applicants and employees for marijuana in states where recreational marijuana is legal. Be aware that currently there is no test for marijuana that can prove current impairment. So you might say you don’t care what your employees do at home, but how do you know when and where they are getting high? It is a dangerous situation that can cause you exposure to liability. Maybe you want to stop testing for marijuana but continue testing for other illegal drugs. Sure you can do this, but does your policy say that this is what you are doing.
4. Do you do business in States that have medical marijuana laws?
In the state of Washington, an employer has no duty to accommodate medical marijuana in drug free workplaces under the state law even when use outside workplace. It won’t be long before every state has some type of medical marijuana law (there are 30 right now). This does not mean that your employees can smoke pot. Not all forms of medical marijuana produce intoxication. Many of the medical marijuana laws prohibit smoking marijuana. Qualifying as a medical marijuana patient is difficult in many states and often limited to extremely debilitating disease and illness. In every company today, leadership must have a discussion about medical marijuana and decide on policies for applicants and employees. What types of job functions do you have? Would you allow folks that use marijuana to work in a factory with heavy machinery, forklifts and with safety sensitive positions? There are questions to answer and decisions to make. Expert advice on the medical marijuana laws in your state need to be carefully reviewed.
5. Will you make accommodations for medical marijuana cardholders – those using marijuana for medical reasons?
This may depend on what state you are in and what type of employees you have. You should be concerned about reconciling the use of medically prescribed marijuana use with disability discrimination laws. It may be that the use of medical marijuana can be essential to an employee’s ability to perform his or her job and may be the only workable accommodation for the employee. This is why policies must be reviewed and decisions must be made. Where you are located, the state law must be reviewed. Arizona, Delaware, Minnesota, and Nevada employers may not take an adverse employment action based on an individual’s status as a cardholder unless not doing so would violate federal laws or regulations or cause an employer to lose a monetary or license-related benefit under federal law or regulations. Connecticut, Illinois, Maine, and Rhode Island also have similar laws prohibiting discrimination on the basis of medical marijuana status. Court rulings are particularly important as many states have not specifically addressed employer concerns and questions regarding medical marijuana. In Barbuto v. Advantage Sales & Marketing, LLC, 78 N.E.3d 37 (Mass. 2017), the Massachusetts Supreme Judicial Court held that the employer should have at least engaged in the interactive process to determine whether an employee’s use of marijuana could potentially have been accommodated.
6. Do you have contracts with corporations that require you perform employee drug testing including marijuana?
It is common in certain industries that corporations require subcontractors to implement drug free workplace programs similar to the programs maintained by the contracting organization. This is very common in the oil and gas industry with a large oil company requiring subcontractors to implement and maintain drug free workplace programs with specific criteria. Railroads have similar requirements for contractors performing maintenance of way (MOW) duties for a railroad. A new rule implemented in 2017 by the Federal Railroad Administration (FRA) subjects MOW employees to a broader spectrum of drug and alcohol testing, including random testing, pre-employment testing, post-accident testing, return-to-duty testing, reasonable cause testing and reasonable suspicion testing. In these situations regarding required drug testing, the contracting organization may be making the choice for you regarding the type of drug testing and the drug free workplace program that you implement. These programs are usually limited to the employees that are actually doing work for the contracting organization or on the contracting organizations’ property. But your company might apply the policy to all of your employees. Once policies are implemented it is critically important that employees are educated about these policies, what is prohibited and what the consequences are. Not educating employees on the company’s substance abuse polices can lead to exposure to liability.
7. Do you work on Federal or State contracts that require you implement drug free workplace programs?
Working on public works projects for the Federal government or many State governments requires implementation of a drug free workplace program. Often this is overlooked by employers and can lead to loss of the contract and monetary damages. The Drug-Free Workplace Act of 1988 (41 U.S.C. 81) requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency. Employers with these types of contracts or grants must review the applicable statutes either Federal or State for the requirements of the drug free workplace program. Program the required drug testing consistent with and mirroring the Federal Workplace drug testing program are requiring testing for the five panel drug test as amended in January of 2018 - Marijuana, Cocaine metabolites, Phencyclidine, Opioids - codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone & hydromorphone and Amphetamines -amphetamine, methamphetamine, MDMA & MDA.
8. Are you participating in a State Drug Free Workplace program to receive a discount on workers compensation?
Starting in the early nineties, states began implementing legislation to create state drug free workplace programs that when an employer participated, they would be eligible for a required discount from workers compensation insurance premiums. Alabama, Florida, Georgia, Kentucky and Ohio are among these states, there are approximately 8 other states with similar programs. Each of these states has unique statutes and rules for implementation of these programs. Some of these program require specific drug testing that may include marijuana. So again it is important to review the specific drug testing policy in your company in relation to the laws in your state and in relation to a specific program you are participating in. As an example the Kentucky program stipulates: Under this Policy, the Company shall test for drugs and alcohol, including but not limited to: a) Amphetamines b) Cannabanoids/THC c) Cocaine d) Opiates e) Phencyclidine (PCP) f) Benzodiazepines g) Propoxyphene h) Methaqualone i) Methadone j) Barbiturates k) Synthetic Narcotics l) Alcohol- A breath alcohol concentration of .04 shall be the maximum acceptance level of concentration. So in this case testing for marijuana would be required if participating in this program. In contrast the Florida program states: The policy must include a complete list of all of the drugs for which the employer will test, described by brand name or common name (if applicable), as well as by chemical name. The employer has the responsibility for choosing which drugs will be tested for in the testing procedures. Our interpretation of the Florida program would be that marijuana could be dropped from the drug testing panel as long as the policy stated this and listed the drugs that would be tested for.
9. Do the laws in your State require drug testing to mirror the testing required by the United States Department of Transportation (DOT)?
As previously mentioned, DOT required drug testing includes Marijuana, Cocaine metabolites, Phencyclidine, Opioids - codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone & hydromorphone and Amphetamines -amphetamine, methamphetamine, MDMA & MDA. There are some states that require employer drug testing programs to mirror the testing required by Federal Workplace Drug Testing programs as defined by SAMHSA or DOT testing – this is the same 5 panel with Opioids testing. Arkansas has a voluntary drug testing law and if an employer participates in this program the drug test must be the SAMHSA 5 panel test. In Montana, New Mexico and Kansas the testing panel must also be the SAMHSA panel. Several other states list specific drug panels that must be tested for and these usually include testing for marijuana. Depending on where you are located and what program you are following, it is import to make sure the policy matches what you are intending to do. Before making any changes to drug testing panels check with professionals for guidance about the legalities and your potential exposure to liability.
10. Do you do business in a State where not hiring or terminating an applicant or employee testing positive for marijuana will cause you liability, cost you money and possibility requiring you to reinstate the employee or applicant?
What state you are in may determine how you structure your drug free workplace policy in regards to medical marijuana. California, Colorado, Michigan, Montana, Ohio, Oregon, and Washington have implemented a legal medical cannabis program that currently has no employee protections. Alaska, Hawaii, Maryland, Massachusetts, New Hampshire, New Mexico, Vermont, and Washington, D.C. are silent on employee protections so pay attention to court rulings. Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Pennsylvania, and Rhode Island generally prohibit adverse action against an employee/applicant based on their status as a medical marijuana cardholder or participation in a medical marijuana program. On February 1, 2018, Maine became the first state to bar employers from testing applicants for marijuana. The Maine law also prevents employers from taking adverse action against off-work pot use. Some good news under current laws, employers in all 50 states do not have an obligation to accommodate an employee who is working while under the influence of medical marijuana, nor must they accommodate the use of medical marijuana by an employee while they are on-duty.
11. Do you not care at all if your employees smoke marijuana on their own time?
Certainly many Americans feel that individuals should be able to do what they want on their own time. But also many workers state that they do not want to work next to someone who may have been smoking pot before coming to work. It is hard to tell when someone used marijuana, there is no specific test for impairment as there is with alcohol. What is the message you are sending if you do not care about your employees smoking pot. There are effects to using this controlled substance. But in the end again it is all about company leadership making decisions and then implementing policies. Always seek the advice of an experienced employment attorney if you are going to have a policy that does not prohibit the use of a controlled substance illegal under Federal law. Always make sure state laws are considered and the specific situation of your company and the job functions in your company. Would you be ok if the pilot on your next flight was a pot smoker on the weekends and you are flying cross country on a Monday morning?
12. How would you know if an employee smoked pot at work or the night before?
There is really no way to tell with current drug testing methods. Your employee tests positive - they may have smoked pot a few hours ago or a few days ago. The test with the shortest window of detection would be the oral fluid lab based drug test to include marijuana on the panel. Detection will be up to 36 hours but usually shorter. With a urine drug test for marijuana detection can be longer depending on the frequency the person smokes marijuana. A hair drug test will not show recent use of marijuana but will show a look back period of up to 90 days.
Marijuana in the workplace will continue to be a hot topic. It will become more complicated if the Federal government legalizes marijuana. The liabilities of an employee who is impaired by a drug do not go away if the drug is legalized. The continuing trends towards legalization of marijuana for medicinal and recreational purposes is a critical workplace issue for employers who drug test, especially where state laws conflict with federal law. Employers must address these issues and must make business decisions about marijuana in the workplace. For expert advice and assistance contact Joe Reilly.