The number of workers testing positive for marijuana use continues to grow, increasing almost 17% since 2014. For workers in safety-sensitive positions, the increase is even higher. Marijuana detection during drug testing of safety-sensitive workers has risen by nearly 24% since 2014.
An ever-growing number of states legalizing both recreational and medical marijuana, and an increasing number of positive test results for marijuana, are creating a complex problem for employers. They must adhere to legislation, including state laws and the Americans with Disabilities Act (ADA), but also protect their workplaces and workers.
There is reason to be concerned. According to the National Institute for Drug Abuse (NIDA), marijuana use puts workers at increased risk of accidents and injury. In one study quoted by NIDA, workers testing positive for marijuana use experienced 55 per cent more industrial accidents, 85 per cent more injuries, and 75 per cent greater absenteeism.
Adding to the complexity of the issue is the fact that while states are legalizing marijuana, it is still prohibited at the federal level. In October 2019, in an attempt to address the confusion, The National Safety Council (NSC) released a policy position stating that no amount of marijuana or other THC products is acceptable for employees working in safety-sensitive positions.
While the NSC statement is primarily targeted to Department of Transportation (DOT) companies, it is also a good policy for any companies with workers they consider to have safety-sensitive positions.
There is no question that employers are well within their rights to prohibit marijuana intoxication on the job. The difficulty is that, unlike alcohol, there is no definitive test for assessing levels of impairment from marijuana.
When it comes to safety-sensitive positions, employers have a few more options, but also more obligations. Here is how you can protect your team.
Start with a Policy
A comprehensive workplace drug and alcohol policy is critical to protecting your team. The myriad of state and federal laws that govern medical and recreational marijuana use can be confusing and often contradictory. Although many states have legalized the use of recreational and medical marijuana, it does remain a prohibited substance under federal law.
Employees may believe that legality means they are free to use marijuana at any time. However, marijuana use does impair users and, as an employer, you have a legal duty to keep your workers and the public safe.
Your drug testing policy can go a long way towards clarifying things for your employees. Be sure to include a marijuana-specific policy. If you are a Department of Transportation (DOT) covered company or if you have federal contracts, your policy must adhere to DOT regulations. If not, you will have to follow state laws.
Regardless, your marijuana policy must include any testing you will be conducting on your employees, along with the repercussions for failing these tests. It should also contain your company policy on the use of medical marijuana, including disclosure expectations and what, if any, accommodations you are willing to make for safety-sensitive workers who are prescribed marijuana.
Again, because marijuana remains a prohibited drug under federal laws, users of medical marijuana are not offered any protections under the Americans with Disabilities Act (ADA). While several states that have legalized medical marijuana follow the ADA guidelines, others have installed protections, including a duty to accommodate employees who are prescribed medical marijuana. The bottom line is, you absolutely need to know your state laws.
An Outright Ban
To protect your team, you may want to consider an outright ban on marijuana use for anyone who works in a safety-sensitive position. This is an especially important consideration for companies in states that have legalized recreational and medical marijuana use.
Make any offers of employment conditional on passing a drug test. You must, however, ensure that all applicants for the same job have to meet this requirement to avoid running afoul of legislation.
For Cause Testing
The key here is to ensure that your state allows for this kind of testing. If it does, you should include provisions in your policy for testing employees that you or your management team suspect of being under the influence of marijuana. You must also include clear consequences if employees do test positive, whether these include termination, suspension or some other repercussion.
As with pre-employment testing, random testing must also be applied fairly, and it must be truly random. However, also like pre-employment testing, it can be an excellent way to protect your team and your workplace.
Off Duty Use
At least 29 states and the District of Columbia now offer some form of protection against employee repercussions based on their off-duty activities, which could conceivably include marijuana use. Understand your state laws and ensure your marijuana policies comply with them.
In short, there are several best practices you should consider to protect your team:
- Ban the use of medical or recreational marijuana by your employees while they are at work.
- Employers with workers in safety-sensitive positions should continue to test for marijuana.
- Update, clarify and communicate your company policy on marijuana use and testing regularly.
- Be aware of any federal regulations that may apply to your testing or your workers.
- Know your state laws concerning the use of medical and recreational marijuana and particularly your state’s protections for medical marijuana users.
- Consider accommodations or alternate jobs for safety-sensitive workers who are prescribed medical marijuana.
- Monitor new court cases and changes in the law that could affect your company policy on marijuana use and testing.