Cannabis: A Changing Conversation

As marijuana legalization continues to expand rapidly, many employers are grappling with how to update their drug policies without employee privacy going up in smoke.
By: | February 13, 2018 • 9 min read

At a time when the labor market is tightening, employers in some states report more candidates are also failing drug tests. Kathy Bray, president of Denham Resources, an HR consulting firm in Fresno, Calif., fears the opening of that state’s legal marijuana market at the start of this year could make the situation worse.

“It’s not a new problem, but if more people are thinking they can use marijuana, it could be even harder to get people to pass a drug screen,” Bray says. “Most of our clients continue to test but some have quit and just dropped it because they have trouble hiring people.”

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As the legalization and use of marijuana increases, HR leaders across the country are assessing their current policies. Employers in safety-sensitive industries such as transportation and construction continue to maintain and clarify their strict testing, but others have quietly ceased pre-screen and random testing because too many people are turning up positive. Experts say that, until there’s more legal clarification and better testing methods, drug policies in the U.S. workforce will only become more hazy.

Navigating the Legal Landscape

Use and acceptance of marijuana is at an all-time high in the U.S. According to an October 2017 poll by Gallup, 64 percent of Americans now believe marijuana should be legal. Nearly half of Americans say they have tried marijuana at least once, and more than 12 percent say they currently use it, up from 7 percent in 2013.

Adult-use “recreational” marijuana is now legal in nine states—Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington—and the District of Columbia. Medical marijuana is also legal in 29 states and D.C., and more states are expected to put marijuana-legalization initiatives to vote this year. While federal law has yet to change, experts say employers must determine how the mainstreaming of the drug will impact the workplace.

“I think the genie is out of the bottle and there’s no going back,” says Jim Reidy, a labor and employment attorney with Sheehan Phinney in Manchester, N.H. “It’s going to be more of a regulated substance and employers have to address it.”

While marijuana remains illegal under federal law, employers retain the right to test for it, discipline those who test positive and retain a drug-free workplace policy. But case law continues to evolve in the area; it’s not so clear-cut, especially when it comes to medical marijuana.

Growing public acceptance of marijuana and competition for labor is already enticing some employers to loosen their policies, says Curtis Graves, information resource manager at the Mountain States Employers Council, a Colorado-based professional-services firm.

Some employers are eliminating screening for THC, the active ingredient in marijuana, altogether and removing marijuana from their panel of drugs, Graves says. Others are no longer pre-screening for the drug, but using new policies that say a positive result in the event of an accident or reasonable suspicion of impairment could be a basis for disciplinary action or termination. In a December 2016 survey, MSEC found 7 percent of employers in Colorado removed marijuana from pre-screens, while 3 percent removed it from all testing.

While many companies are still pre-screening for THC in Colorado, very few are doing random testing unless required by the federal government, Graves says. As unemployment falls, he says, it has become “critical” that employers not intrude too much in the private lives of their workers.

Denham’s Bray adds that clients that have to ensure a drug-free workplace are communicating that passing a drug test is mandatory to candidates in job ads, applications and interviews. “We keep stressing that and you just hope that, by giving them the heads-up, they’re going to be able to get past that,” Bray says.

Recruitment and Retention Roadblock

Employers in federally regulated industries or those with federal contracts—such as in trucking, transportation and construction—must maintain zero-tolerance, drug-free policies. There’s evidence that growing marijuana use has already become a problem in these sectors.

Greg Fulton, president of the Colorado Motor Carriers Association, says increasing positive rates are hurting the ability of some companies to hire more drivers and grow. It’s especially problematic at a time when the industry already faces a driver shortage due to an aging workforce.

“[Marijuana] is just so much more prevalent,” Fulton says. “It’s in cookies, muffins, bread, candy. More people are testing positive. People say they were at a party and just didn’t know.”

Thorand Towler, CEO of the Nevada Association of Employers, says employers report more candidates have been testing positive for THC since the state legalized recreational marijuana sales in July. In one example, an employer put 100 qualified candidates through an interview process but had to eliminate 20 due to positive marijuana tests.

“They were not bottom of the list; these were clean-cut people, top candidates,” Towler says. “They put someone through multiple rounds of interviews and [they tested positive].”

Some of those employers have dropped THC altogether from pre-screens while others have told candidates to come back in a month to retest, Towler says. Marijuana stays in the system longer than any other drug; even substances such as cocaine or methamphetamines typically leave the body within three to four days. “Unfortunately, it’s the worst possible drug for testing. It’s sticky and stays in your system so long,” Towler says.

Reasonable Suspicion

THC can remain in the body for up to 30 days or more, making it difficult to gauge if someone consumed it hours or weeks ago. Unlike with alcohol, there is no standard for determining marijuana impairment. Authorities in states that have legalized the drug still don’t have a consensus on how to determine marijuana impairment for driving purposes.

For instance, in Washington and Colorado, a person can be charged with a DUI if a blood test finds THC concentrations of 5ng/ml or higher. In Oregon, authorities use urinalysis and officer observation to determine impairment.

Many employers are trying to strike a balance between protecting a worker’s right to privacy and ensuring he or she is not impaired on the job. Few are willing to publicize their lax stance on marijuana use, but it’s increasingly common in non-safety-sensitive industries.

“The vast majority of employers are saying, ‘I don’t care what people do, you just can’t come to work high,’” Towler says. “But no employer wants to publicly advertise that [it’s eliminating testing for THC].”

Despite its legality on a state level, post-accident tests that reveal THC “will tilt toward negligence,” says Reidy of Sheehan Phinney. Employers may be eliminating pre-screening but many are also using clear language in updated policies to indicate that workers cannot be under the influence.

Employers can decrease their liability exposure and more readily separate themselves from a “bad-acting” employee, Reidy says, if they are diligent about their policies, monitor safety issues and consistently reinforce the policies.

Until a universally accepted test is created, many employers are relying on a combination of urinalysis and “reasonable suspicion” to determine impairment. Some are putting managers through reasonable-suspicion drug training to spot the signs of marijuana impairment, such as bloodshot and watery eyes, slurred speech, elevated heart rate and lack of focus, Towler says.

Some employers are moving away from random testing out of fear they’ll lose too many employees, he says, citing a recent example of an employer that discovered its star employee tested positive for THC after a random screen. “They didn’t know what to do because, if they fired him, they’d lose a half-million-dollar account,” Towler says.

New Policies for New Times

Employers should review job descriptions to determine if off-duty marijuana use may create a safety hazard, says Sarah Sullivan, risk-control service coordinator for insurance-brokerage firm Lockton Cos. They should also train their managers on how to recognize impairment and document their observations, as well as determine if drug testing is the best method to discern impairment.

“The goal of drug testing isn’t to determine the presence of drugs in the person’s system, but to determine impairment or the ability to perform the job,” says Sullivan, who is based in Denver.

Employers may also consider alternatives to drug testing, such as psychomotor testing, which measures the employee’s current physical state, including reaction time and coordination.

Debate continues on whether long-term marijuana use impairs work performance even when the user is not under the influence. Because marijuana remains a Schedule I drug, which means it has “no medical use,” there are limited studies on its effects on the body and mind.

Making the testing issue even “more complex” is medical marijuana, says Kathryn Russo, an employment attorney with Jackson Lewis P.C. in Melville, N.Y. Of the 29 states where medical marijuana is legal, 10 require employers to accommodate users and have laws against disqualifying someone from a job simply because he or she tested positive for marijuana. Courts in Rhode Island and Massachusetts have ruled against employers that have tried to deny or terminate employment for medical-marijuana users.

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In the Massachusetts case, the court found that the patient could claim disability discrimination under the state’s anti-discrimination statute. While employers don’t have to hire every medical-marijuana user, they do have to “analyze the situation on a case-by-case basis,” Russo says.

Russo recommends that clients in states with recreational-marijuana laws amend their policies to put people on notice about testing. “It might imply that there’s no [random testing] but a positive post-accident test could have consequences,” he says.

A number of companies are working on breathalyzers that can determine marijuana impairment at a given point in time. Should these give regulators and employers a uniform way to test for marijuana impairment as they do with alcohol, there’s “little doubt” it would change testing and policies, Graves says.

“The question is, if a technology existed that was able to tell whether somebody was currently impaired, might there be some legal pressure on a company to use it?”

Another wild card is if the federal government downgrades marijuana or removes it as a Schedule I drug from the Controlled Substances Act. This would essentially legalize marijuana at the federal level and potentially offer federal protections for off-duty use, at which point all employers would need more than a positive urine test to prove impairment.

Tom Jones, an attorney with the Associated Industries of Massachusetts who specializes in labor and employment matters, says many employers are keeping their existing policies, regardless of new legality at the state level. While most of these companies are indicating to employees that a failed test will result in termination, others are moving to a “last-chance” agreement that will give employees one pass and put them on a probationary period and employee-assistance program.

Jones also points out that the fastest-growing cohort of marijuana users is people age 50 and over, and that continued legalization efforts could expand medical use.

“Few companies have dealt with this issue yet,” Jones says. “I’m sure it will come up and companies may say they’ll take the risk they might get sued because the job is too dangerous and they can’t have them on it.”

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