LIKE NAILING JELL-O TO A WALL: WHY WORKPLACE MARIJUANA POLICY IS SO DIFFICULT TO NAIL DOWN

There is a great deal of confusion across the country in both the private and public sector as the legislatures and courts figure out the best way to handle the call for the legalization of marijuana. Some companies are removing marijuana and its metabolites from their policy altogether, some companies are switching modalities (from urine to saliva which has a shorter detection period), and still, a large portion of other employers are now looking to implement new policies as a result of the legalization of recreational marijuana–concerned that more employees are likely to show up to work under the influence.

THE CASE FOR REMOVING MARIJUANA TESTING ALTOGETHER

Many employers are afraid to continue testing for marijuana in any instance and are striking it from their policies altogether. Lauded by many employees and labor organizations, this kind of decision puts the employee’s privacy interest at a level above the safety and productivity interests of the employer. Employees who utilize marijuana recreationally or medicinally where doing so is legal under state law have the peace of mind knowing that those acts do not risk violating their company policy. However, with research asserting that employee drug use and abuse contributes to absenteeism, low morale, lower productivity, more accidents, increased healthcare costs, turnover, theft,[1] and an estimated cost of over $400 billion annually in the US alone,[2] one might be forgiven for thinking that the employer striking marijuana from its policy has made the wrong decision. After all, just because marijuana is legal recreationally in a state it doesn’t mean that employers aren’t able to prevent employees from showing up to work under the influence of marijuana, much in the same way that employers are currently able to prevent employees from going to work under the influence of alcohol.

It turns out that some legislative bodies (New York City Council[3] the Nevada Legislature[4], and potentially the Maine Legislature[5]) have already affirmatively banned pre-employment marijuana testing in the workplace for all but certain federally regulated and safety-sensitive positions beginning in 2020. If this kind of legislation becomes a trend, then employers who test for marijuana in pre-employment situations may not only be accused of violating an employee’s privacy interest, but they may also be breaking the law. Making the decision to strike Marijuana altogether, according to these employers, is just pre-empting the trend.

However, even these legal limitations on testing are restricted to pre-employment drug tests for marijuana and exempt certain safety-sensitive and federally regulated employees. They also do not affect any existing programs for testing under reasonable suspicion or in post-accident determinations for non-safety-sensitive positions and currently affect only three jurisdictions: two states and one city. While logic dictates the importance of anticipating trends in the law to prevent future liability, completely striking marijuana from a drug testing panel would seem fairly counter-intuitive in the face of current safety, liability, and productivity concerns.

THE CASE FOR SWITCHING MODALITIES

What has been arguably one of the most difficult part of implementing marijuana policy with stakeholders (at the federal, state, city, or company-level) is that current technology is limited to testing for the presence of marijuana and its metabolites, not necessarily whether the employee was actually under the influence of the psychoactive components of marijuana at the time of the test. For example, research on the marijuana metabolite tetrahydrocannabinol (THC) indicates that THC can be detected in urine tests for up to 30 days—several weeks after the psychoactive effects have subsided.

This presents a serious conflict. Consider this scenario:

Joe works for a warehouse as an order picker and is not in what is considered a “safety-sensitive” position. He lives in a state where recreational marijuana is legal and decides to use it on Friday after his shift. He does not use marijuana over the weekend and experiences no further symptoms of its psychoactive effects on Saturday. On Sunday afternoon Joe’s daughter is seriously injured in a sports accident and Joe spends all night in the hospital. Since he has no health insurance, he can’t risk calling out on Monday despite never having slept or showered. Joe goes into work late on Monday with bloodshot eyes from the lack of sleep. He is wearing the same wrinkled clothes he was wearing the day before and, since he hasn’t had the chance to shower, he has an odor.

The program administrator orders a reasonable suspicion drug test in accordance with the company drug-free workplace policy. Joe provides a urine sample and the test result is positive for THC. He has no prescription to justify the result.

What should Joe do? If he says nothing the presumption is that he used marijuana at work against the drug-free workplace policy. If he indicates that he used marijuana on Friday, then he is admitting to the use of a substance prohibited under the drug-free workplace policy and may have adverse action taken against him.

What should the employer do? Many states have legislation which bans employers from taking any adverse action against employees for activities outside of work. Despite a policy that bans the use of marijuana and other substances, can the employer lawfully take adverse action against Joe if he admits to only using marijuana after work on Friday only? Some state laws say yes, some state laws say no.

One solution (albeit incomplete) to this conundrum has been to limit these instances altogether by switching testing modalities from urine to saliva. Research indicates that the detection period for THC in saliva is generally less than that of urine. Heavy and/or chronic users of marijuana have had positive test results for THC for up to about a maximum of 30 days prior in urine, whereas in one study in Norway, saliva was detected THC for up to 8 days for those same heavy users.[6] The consensus amongst American laboratories puts moderate to low and non-chronic marijuana users in a maximum detection period bracket of about 24-72 hours after use. In addition, a study published in the journal “Psychopharmacology” suggests that saliva tests showing positive for THC “are a sensitive index of recent cannabis smoking, and appear more closely linked with the effects of intoxication than do either blood or urine cannabinoid levels.”[7] Had Joe’s drug test been with saliva rather than urine, it is likely that the result would have been negative, and Joe and Joe’s employer could have avoided the conflict altogether.

For this reason, many employers, particularly in states where recreational marijuana use is legal, are switching from urine to saliva. The results from a saliva test are a closer approximation of marijuana influence rather than mere presence of residual metabolites.

Note, however, that some state laws and voluntary programs still prohibit the use of saliva in drug screening altogether.

THE CASE FOR STARTING A NEW DRUG TESTING POLICY

Recreational marijuana use is becoming legal in many states across the country. If the trend is legalization, why would any employer without a current drug-free workplace policy start implementing one now?

Consider this scenario:

Lawrence owns a small moving company which has been around for several years. The trucks his drivers operate don’t require a Commercial Driver’s License (CDL) so none of his employees have ever been regulated by the DOT/FMCSA and therefore he has never been required to drug test. He doesn’t care what his employees do on their own time, so he doesn’t have a drug-free workplace policy currently and even voted for the referendum which made recreational marijuana use legal in his state. However, a recent event has led him to reconsider his no drug testing policy stance.

Last week, one of his drivers ran a red light resulting in a serious accident. Consequentially, Lawrence now has two injured employees, both with workers’ compensation claims and a lawsuit pending from the passengers in the other vehicle who were critically injured. Lawrence’s insurance company is handling the claims, but something another employee said has him concerned. The employee says that after the driver returned from his break his eyes were glossy and he smelled like marijuana. Since Lawrence didn’t have a drug-free workplace policy in place, he can’t request a post-accident or reasonable suspicion drug test on the employee to prove or disprove his suspicion that the driver was under the influence. Recreational marijuana is legal in the state, but he wants to avoid this situation from ever happening again.

What should Lawrence do? Does he have a duty to his employees and the public at large to implement a drug testing policy?

On one hand, Lawrence doesn’t believe he should be policing his employee’s personal lives, he may be barred from pre-employment testing for marijuana if he resides in a jurisdiction that has banned it for all but safety-sensitive and federally regulated employees. Even if pre-employment marijuana testing is not banned in his jurisdiction, he might still drastically reduce the pool of prospective future employees. If he has a pre-employment drug testing program, he may increase recruiting and onboarding costs and slow the hiring process down.  If he implements a reasonable suspicion and post-accident testing policy now (with notice), he believes he risks losing current employees who may use marijuana occasionally outside of work.

On the other hand, in addition to feeling morally (and potentially financially) responsible for the accident and the injuries his driver caused, Lawrence’s insurance premiums have drastically increased, morale is low, and productivity has slowed. If he implements a drug-free workplace policy now (with notice), he may be able to lower his insurance premiums, improve morale, increase safety and productivity, and hopefully prevent a similar accident from happening in the future.

Many employers are now finding themselves in positions similar to Lawrence, stuck between a rock and a hard place, but ultimately choosing to implement a drug-free workplace policy despite the arguments to the contrary.

[1] https://www.drugabuse.gov/related-topics/drug-testing;

[2] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5671784/

[3] https://www.natlawreview.com/article/nyc-bill-banning-pre-employment-marijuana-drug-testing-becomes-law

[4] https://www.jdsupra.com/legalnews/nevada-will-ban-pre-employment-29122/

[5] Me. Rev. Stat. tit. 26, § 681 (LexisNexis, Lexis Advance through 273, 275, 277-283, 285, 287-297, 299-332, 334-359, 362-370 & 428 of the First Regular Session of the 129th Maine Legislature Session); but see Me. Rev. Stat. tit. 28-B, § 112 (LexisNexis, Lexis Advance through 273, 275, 277-283, 285, 287-297, 299-332, 334-359, 362-370 & 428 of the First Regular Session of the 129th Maine Legislature Session).

[6] https://www.ncbi.nlm.nih.gov/pubmed/24819969

[7] https://link.springer.com/article/10.1007/BF02244217



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