Experts offer strategies to help navigate the complex landscape ofÂ marijuana legalization and workforce safety.
By Marta Chmielowicz
There is more public support for marijuana law reformÂ than ever before, with Pew Research Center reportingÂ that 62 percent of Americans are in favor of marijuanaÂ legalization. And the legislative landscape is constantlyÂ changingâ33 states have legalized medical marijuanaÂ and 10 states, along with Washington D.C., have legalizedÂ its recreational use. But it is still classified as a Schedule IÂ drug, or a substance with high potential for abuse andÂ no currently accepted medical use, under federal law.Â This contradictory legislation is creating a conundrumÂ for organizations that have embraced strict drug-freeÂ workplace policies.
âAlthough marijuana remains illegal under federalÂ law, employers must take care to follow state medicalÂ marijuana accommodation, disability accommodation,Â and anti-discrimination requirements,â says Jamie Webb-Akasaka, vice president of legal counsel at OneDigital.Â âViolation of these laws can lead to back pay, future pay,Â job reinstatement, and other damages, penalties, andÂ attorneysâ fees.â
According to First Advantage Chief Global ComplianceÂ Officer Josephine Kenney, anti-discrimination laws areÂ getting stricter for employers. In Connecticut, a recentÂ federal court district case protected a medical marijuanaÂ user who was denied employment based on a failedÂ drug test, ruling that under the Connecticut PalliativeÂ Use of Marijuana Act (PUMA), employees with medicalÂ marijuana certificates who use the drug after hoursÂ and are not impaired during work hours cannot beÂ discriminated against.
But organizations also need to consider that leniencyÂ toward legitimate medical marijuana users can jeopardizeÂ employee safety, health, and wellnessâespecially inÂ industries that require intense focus or those that putÂ employees in direct contact with the public. In particular,Â Marco Piovesan, CEO of InfoMart, says that organizationsÂ in safety-sensitive positions, such as those regulatedÂ by the federal government, those that provide home-facingÂ services, and those that require alertness and strictÂ adherence to safety procedures, are at highest risk whenÂ facing marijuana impairment.
âItâs also interesting to note that the Department ofÂ Transportationâs regulations, which most medical reviewÂ officers use as a baseline, strictly forbids the use ofÂ marijuana for any purpose. Additionally, while thereÂ are some states that protect the rights of patients whoÂ use medical marijuana, employers open themselves upÂ to HIPPA violations if they ask an employee to provideÂ documentation of their cardholder status,â PiovesanÂ adds.
Itâs a delicate balance: Organizations simultaneously needÂ to make sure that they are not discriminating againstÂ medical marijuana users while complying with safetyÂ standards and policies that often reject marijuana use.
Drug Testing Challenges
Another challenge that arises out of medical marijuanaÂ legalization is the issue of inadequate drug testing forÂ THC. âAccurate drug testing for marijuana intoxicationÂ still seems to be a distant goal,â says Webb-Akasaka.Â âGenerally, marijuana tests can only show recentÂ marijuana use, not whether a person is impaired.Â Blood and saliva tests can be helpful to show currentÂ intoxication immediately following a work-relatedÂ accident, but still do not show the level of impairment.â
Since medical marijuana users in certain states legallyÂ cannot be denied employment unless they areÂ intoxicated at work, it often falls to managers to identifyÂ signs of substance use. Kenney says that while makingÂ this determination involves a lot of subjectivity, someÂ organizations in Maine are beginning to adopt a newÂ approach to impairment detection. In fact, the MaineÂ Department of Labor offers an expanded reasonableÂ suspicion training course that suggests three courses ofÂ action to determine employeesâ fitness for duty: drugÂ testing, a reasonable conversation with the employee,Â and referral to a healthcare professional who can make aÂ more objective judgment.
âThis a new way of looking at things,â she explains. âItâsÂ getting away from whether the individual is impaired orÂ not, and towards whether the individual needs furtherÂ review and further study to determine the need forÂ intervention or support. Itâs a more supportive type ofÂ approach for the individual.â
Businesses that operate across state lines face an addedÂ challenge. While some have adopted a company-wideÂ policy, other organizations are choosing to tailorÂ their drug screening practices to each stateâs specificÂ regulations.
But opinions about the best approach differ even amongÂ the experts. Kenney advocates for an individualizedÂ policy that takes into consideration the nuances of eachÂ state. âCompanies can no longer, in my opinion, safelyÂ do one big drug-free workplace policy that encompassesÂ all the nuances of cannabis regulation. The landscape ofÂ workplace drug testing has become more complex. EveryÂ employer has to face this issue and make some decisionsÂ as to what their level of commitment is to a drug-freeÂ workplace and how willing the are to do some of theÂ heavy lifting thatâs required when you decide you wantÂ to continue testing for marijuana.â
In contrast, since marijuana is illegal at the federal level,Â Piovesan suggests that organizations maintain a uniform,Â well-communicated drug-testing procedure acrossÂ the enterprise that integrates drug screening for allÂ potential candidates and random drug testing for currentÂ employees.
A possible compromise may be to develop uniqueÂ policies based on specific positions, says Webb-Akasaka.Â âEmployers should consider having a consistent policyÂ for certain sensitive positions across all states, taking intoÂ consideration areas of potential liability. Additionally,Â employers must always take care to apply their policiesÂ consistently, in a neutral fashion, so as not to discriminateÂ against any protected class.â
An organizationâs decision to include or removeÂ marijuana from drug screening panels in the age ofÂ legalization is highly individualized and balances aÂ number of factors, including health and safety ofÂ employees, legal liability mitigation, and ongoingÂ perspectives about a drug-free workplace.
How can HR professionals ensure that they remainÂ compliant with state laws while being responsibleÂ and fair to their employees? First Advantageâs KenneyÂ recommends five best practices:
1. Stay on top of changing regulations. With marijuanaÂ legislation evolving at such a quick pace, it is importantÂ for organizations to watch state and federal lawsÂ carefully, making sure to consult with their legal counselÂ before taking adverse action or imposing disciplinaryÂ consequences against existing employees.
2. Consult legal teams. âItâs really important for anÂ employer to consult with their own legal counsel in theÂ context of their risk tolerance position and their legal riskÂ mitigation strategy,â Kenney explains.
3. Evaluate the specific job functions and requirements.Â Organizations should craft a drug policy that takesÂ into consideration the function and needs of specificÂ positions. By deciding which positions must be drug-freeÂ and which can be a bit more lenient, HR professionals canÂ help get the candidates they need in the door.
4. Provide individualized assessment and reasonableÂ accommodations. Once a company determines whichÂ positions can safely accommodate marijuana use,Â Kenney says that it should consult the Equal EmploymentÂ Opportunity Commissionâs guidance on individualizedÂ assessment.
And Webb-Akasaka agrees: âFor any applicant orÂ employee who engages in legal medical marijuanaÂ use as a treatment for a qualified disability, employersÂ should engage in the interactive process required by theÂ Americans with Disabilities Act and similar state laws. ThisÂ may include reviewing whether the individual is usingÂ medical marijuana or impaired while at work, or is in aÂ safety-sensitive or other legally regulated position. MostÂ importantly, this would require attorney review beforeÂ taking any action that affects the terms and conditions ofÂ the personâs employment.â
5. Communicate the policy. Organizations need a strongÂ communication strategy that clearly enunciates theirÂ positions about medical and recreational marijuana,Â including extracts and oils such as CBD.