Marijuana in the Workplace

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The states of Colorado and Washington, as well as the District of Columbia, have enacted laws legalizing the recreational use of marijuana. Those jurisdictions and twenty-one other states have also legalized the use of medical marijuana. Meanwhile, U.S. Code still outlaws the use of marijuana, and programs funded by or under the direction of the federal government mandate drug testing that includes testing for marijuana.  

The Journal of Occupational and Environmental Medicine published an article on the use of marijuana in the workplace in the April 2015 issue of the journal. That article presents a good overview of the issues associated with the use of marijuana – with a focus on the potential effects on workplace policies and plans.

There are a significant number of factors that employers need to consider when developing policies and plans addressing the use of marijuana by employees:

• Federal and state laws regarding marijuana use vary significantly from jurisdiction to jurisdiction.
• Mandates included in laws and regulations such as the Drug Free Workplace, Americans with Disabilities Act, OSHA regulations on workplace safety and workers’ compensation regulations compound employers’ policies, procedures and plans addressing safety and employee use of marijuana.
• Studies on the effects of marijuana are dated, having been, largely, conducted with marijuana that was significantly less potent than strains commonly available today.
• There are no existing tests for marijuana impairment that are as reliable and precise as the breath and blood tests used to document alcohol impairment.  
• Blood testing for marijuana use is the only test currently available, and those tests do not distinguish between active and inactive delta-9-tetrahydrocannabinol (TCH) products in the blood stream. A user can test positive for marijuana use without being impaired.
• Medical marijuana is no different than recreational marijuana, and a medical marijuana user can test positive without being subject to legal sanctions.
• Programs being executed for or under the oversight of the Federal Government may have drug use prohibitions that supersede state and local law.
• Adequacy of current insurance coverage in the light of potential liability as a result of company policies (or the lack thereof) addressing employee impairment on the job.

Given the complex environment surrounding marijuana use, legal and illegal, employers need to develop thorough and thoughtful policies governing on-the-job impairment – including the use of marijuana, alcohol and other substances that can cause mental or physical impairment. It is imperative that these policies and plans be consistent across the various substances, discriminating only between legal and illegal substances. Inconsistencies can render a well-conceived policy ineffective.

It is not possible in this blog to provide a comprehensive discussion of the steps that employers should follow in the development of effective and enforceable policies and plans governing the use of substances that can cause mental or physical impairment. Employers should, however, adopt the Firestorm PREDICT.PLAN.PERFORM.^® approach.

PREDICT –

• Employers need to thoroughly understand the legal and business environments in which they are working. That understanding needs to include:
• What is the likelihood that employees will suffer substance-use impairment on the job?
• What are the potential results of such impairment and the associated costs?
• What location-specific laws govern employer workplace substance-use policies?
• What other laws and regulations must be considered in developing a policy or plans?
• What pending legislation may affect employer substance-use policies and plans?
• How enforceable are the proposed policies and plans?
• Are the proposed policies and plans consistent across all impairment-causing substances?
• What are the monitoring plans and how practical are those plans?
• What legal and civil liability risks is the company exposed to as a result of actions by an impaired employee?
• Do insurance policies cover action by impaired employees? Is that coverage adequate?
• Employers need to then craft their impairment-causing-substance policies. The policies should include any necessary background, the purpose of the policy and ensuing plans and any overarching decisions or directives.  

PLAN – Based on answers to the above questions and a deep understanding of the impacts of those answers, and after consultation with an attorney, employers need to develop actionable plans. Those plans must include specific actions – who will perform the actions and how they will be performed.  

It is critical that the plans be specific and actionable in order to ensure consistency. The plans need to include what actions the employer will take if an employee is impaired from substance use, and those actions must be consistent with governing laws, regulations and, if germane, collective bargaining agreements. These plans (along with the employer’s policy) must be available to employees. Substance-use policies and plans should be reviewed regularly – at least annually, but more often if warranted by new legislation or regulation – to ensure currency in the rapidly changing legal environment surrounding marijuana use.

PERFORM – Employers should provide training to all employees on the purpose and content of the policies and plans.  Substance-use plans will require knowledgeable participation by a range of employees, from supervisors reporting possible impairment to HR specialists, to medical personnel and to senior management. As with any contingency plan, employers must practice their plans. In this instance, announced and unannounced tabletop exercises for company leaders will ensure that responsible personnel will respond appropriately, protecting the safety of all employees, company operations and reputation and the rights of all employees.   
 
Marijuana and other impairment-causing-substance use among employees is a real risk. It is an area fraught with complex social and liability issues, as well as multiple layers of mandates deriving from federal and state legislation and the regulations written to fulfill that legislation. While physical safety is a driving concern for companies engaged in manufacturing, transportation, mining and similar areas, there is still risk associated with impaired employees working in less physically demanding industries such as legal, health care, education and finance.

Employers need to assess the risks associated with the use of marijuana and other impairment-causing substances, create policies and develop plans accordingly.

PREDICT.PLAN.PERFORM.^®

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