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Weed in the Workplace (Conclusion)

States legalizing marijuana could see insurance rates increase

CHICAGO — Illicit drugs are increasing in the workplace. And marijuana is leading the way.

The textile care industry, including self-service laundries, is paying attention to the issue, as evidenced by the general educational session on Workplace Risks of Legalized Marijuana that drew a sizable crowd during last year’s Clean Show.

What should employers do? The answer has become more complicated with the growing number of states legalizing cannabis for medical and recreational use. Should drug tests even include marijuana anymore? If they do, and evidence of marijuana use pops up, should employees be penalized? And further: Do employers have to accommodate for the medical use of marijuana under the federal Americans with Disabilities Act, or state human rights laws?

COMMUNICATE POLICY WITH EMPLOYEES

Testing for marijuana may not disappear from the workplace anytime soon. But if testing alone can’t cover all the bases, how does an employer know an employee is impaired by marijuana use?

“There is no exact answer,” says Faye Caldwell, managing partner of Caldwell Everson PLLC, a Houston-based employment law firm specializing in workplace drug testing. “I encourage my clients to train supervisors to spot behavior that is characteristic of impairment, and to have policies that call for specific steps to take.”

Suppose, for example, an operator of a forklift or other heavy equipment is seen to be acting in an erratic manner that might suggest use of marijuana or other drug. “Your policy might call for steps such as writing a report on what is observed, having the employee take a drug test, and removing the employee temporarily from duty.” These policies, like any that touch on drug use, must be approved by an attorney knowledgeable about your state laws.

Whatever the decision your business makes on drug policies, communication with the workforce is critical.

“I like a lot of transparency on this topic,” says Caldwell. “Let your employees know your policy and if it calls for accommodation. And give people the opportunity to do the right thing by telling them they cannot come to work impaired and they cannot use marijuana in the workplace.”

Take extra care with those employees who have said they are imbibing the substance.

“I encourage employers to have candid conversations with workers who are using marijuana,” says Caldwell. “Talk with them about when they use it, how they use it, and what to do to avoid being impaired on the job.”

INSURANCE RATES

As we have seen, the growing number of state laws legalizing marijuana is causing an increase in the use of the drug by employees. Will that translate into higher rates for employers’ liability and workers’ compensation insurance? Experts say it’s too early to tell, but the answer could well be yes.

“It could take a few years, but we anticipate higher insurance rates in those states legalizing marijuana,” says Amy Ronshausen, executive director of Drug Free America Foundation Inc., St. Petersburg, Florida. “In a study reported by the National Institute on Drug Abuse, U.S. employees who tested positive for marijuana had 55% more industrial accidents, and 85% more injuries, than employees who tested negative.” Insurance rates go up for employers who experience more accidents.

Rates may also increase for a related reason.

“In those states that offer workers’ compensation insurance discounts to employers who maintain drug-free workplaces, drug testing is required—and it must include testing for marijuana,” says Dr. Donna R. Smith, regulatory compliance officer in the Tampa Bay, Florida, office of Workforce QA, a nationwide third-party administrator of drug-free workplace programs. “If employers decide to not test for marijuana, they risk losing their insurance premium discount.”

CBD COMPLICATES ISSUE

Marijuana in smokable or ingestible form has been getting the lion’s share of attention from employers looking to formulate a good workplace drug policy. But there’s a related substance, also growing in popularity, that can cause its own problems. That’s cannabidiol, popularly known as CBD.

This extract from the marijuana plant is ingested for health reasons, and is not considered a controlled substance if it contains less than 0.3 percent—three tenths of 1 percent, not 3 percent—of THC, the marijuana plant extract that causes people to get high.

While that sounds like a straightforward guideline, problems arise because the CBD sold on today’s market is not regulated.

“The CBD that people are ingesting may have higher levels of THC than 0.3 percent,” says Smith. “Additionally, employees may be using a larger quantity of CBD than normal. In either case, the employee’s drug test may detect THC above the cut-off level for a positive test.”

That can be bad, because such a test result might penalize employees unnecessarily.

So what can businesses do?

Smith advises employers with drug testing to tell employees something like this: “We are not prohibiting the use of CBD, but you are using it at your own risk because we do test for THC. If your CBD product contains enough THC, and you use it frequently enough, you may test positive for THC. You will then incur the disciplinary actions consistent with a positive drug test.”

TAILOR POLICIES

The successful workplace policy will be tailored to the specific needs of an employer’s workplace. To avoid costly errors, experts advise seeking legal counsel, looking at your state laws, updating your policies and educating your workforce.

“There is no one-size-fits-all answer to the question of a workplace marijuana policy,” says Caldwell. “We are still in our infancy on this topic. The biggest challenge right now is uncertainty.”

Miss Parts 1 or 2? You can read them HERE and HERE.