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Weed in the Workplace (Part 2)

Employers may still outlaw on-site use of marijuana, experts say

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?

WORKABLE POLICIES

If employers must deal with a patchwork of state and city laws, the end result is often a confusion that causes delays in formulating and implanting workplace drug policies.

“Business leaders have not really been talking about this topic as they should,” says Joe Reilly, president of his own drug testing consulting firm in Melbourne, Florida. Delay can be costly. “Companies that do not invest the required time and effort to adjust their workplace policies end up making hasty employment decisions. And those often lead to lawsuits. Maybe they get sued, for example, for terminating or denying employment to someone who fails a marijuana drug test.”

So how do you design policies that create safe workplaces while protecting your business from lawsuits?

“I encourage employers to seek legal counsel,” says Reilly. “Then decide how the business’ current workplace policies need to change to conform to state laws.”

Reilly points out some common areas.

“Suppose your existing policy calls for termination when an employee fails a drug test. Should you change the policy to allow exceptions for legitimate marijuana medical use? And what if the employee is in a safety-sensitive position, such as operating a forklift, or working on building roofs, or working with children? You cannot allow people to work in such positions while under the influence of marijuana. Will you terminate them, or accommodate by moving them to safer positions when possible?”

The answers to all of those questions must conform to state law. The specifics about current and changing laws are important, but so is a sensitivity to larger issues that can impact policy decisions.

“To come up with workable policies, employers need to evaluate the nature of their workforce, the presence of safety-sensitive work positions, and the availability of prospective employees,” says Faye Caldwell, managing partner of Caldwell Everson PLLC, a Houston-based employment law firm specializing in workplace drug testing. “The last factor can be of particular importance given the greater number of people using marijuana and the low unemployment numbers in many areas of the country. The employer with too restrictive policies may not be able to hire enough otherwise qualified applicants to fill the available jobs.”

The solution can often involve balancing safety with liability.

“Employers need to reach some sort of balance between the creation of a safe workplace and the risk of litigation,” says Caldwell. “Reaching that balance can be difficult. For example, an employer may be tempted to state that accommodation for marijuana use will only be provided to the extent mandated by law. However, that employer needs to not only look at marijuana laws, but also consider the disability and human rights laws that may provide protection in a given state.”

TESTING FOR MARIJUANA

One thing is for sure: Employers may still outlaw on-site use of marijuana.

“In states where marijuana is legal, you can still ban its use in the workplace, just as you can with alcohol,” says Reilly. “Nothing in the statute prevents an employer from maintaining a drug-free workplace, whether for medical or recreational purposes.”

That sounds good on the surface. But a problem has arisen with the packaging of marijuana in new forms.

“We are not just talking about a joint, which would be easy to see and smell,” says Amy Ronshausen, executive director of Drug Free America Foundation Inc., St. Petersburg, Florida. “We also have products like granola bars, soda and candy that contain marijuana. Without actually looking at the packaging, how would you know employees are using the drug?”

One way to spot use is, of course, to test. We have already seen that states are complicating this issue with a patchwork of laws that dictate when testing can and cannot be used. And there’s another problem: No marijuana test has yet been devised that can indicate impairment. That’s a big difference from alcohol testing.

“Normal workplace drug tests can only reveal that an employee has recently used marijuana—not that the employee is actually impaired at any given point in time,” says Caldwell.

While blood tests can reveal the level of marijuana, currently no consensus exists as to what level signifies impairment. Indeed, the new methods of ingestion can result in blood test variances.

“While smoking marijuana can result in a quick spike in THC blood levels, that is not the case for other methods of ingestion,” says Caldwell. (THC is the principal psychoactive constituent of cannabis.) “While ingesting marijuana as an edible, some people might appear very impaired, but their blood levels of THC might never climb very high.”

If it all sounds too complicated, why not just avoid the issue as much as possible?

“Some employers are deciding to stop testing for marijuana, because of the complexity of the issues, litigation risk and limited availability of workers,” says Caldwell. “And in those states that prohibit adverse employment action for off-duty recreational marijuana use, employers may wonder if any purpose at all is served by such testing.”

Whether a test ban is a good idea depends on the laws of the state or states where your business is located, and the nature of your business.

And putting a halt to testing is no panacea, says Caldwell: “Not testing poses its own risks—such as decreased productivity and employee safety issues.”

Indeed, a total testing ban can keep the employer from determining if a certain accident was caused by marijuana use.

“If I were advising an employer who was adamant about dropping their marijuana testing, I would urge them to at least test for marijuana post-accident,” says Reilly. “They should also test any time an employee is exhibiting signs and symptoms of some drug influence.”

Check back Tuesday for the conclusion!

Miss Part 1? You can read it HERE.