We get many questions from employers about drug testing for marijuana in states where marijuana is legal. Employers should remember two things. So far, an employer’s right to take action against a worker under the current influence has not been overruled. And, just because alcohol is a legal substance that doesn’t mean an employer needs to tolerate employees under the influence of alcohol. It would seem that employers, so far, can take the same attitude toward marijuana.
There was an excellent article written by The Institute for Behavior and Health, Inc. My purpose in this post is to highlight information in that article IBH_workplacetesting-4 This information will arm you with pertinent facts about the use of marijuana so that you can defend your firm’s position on disallowing its presence in the workplace. There should be no doubt that drug use, both legal and illicit, has a terribly negative impact on the workplace.
The Institute for Behavior and Health, Inc. (IBH), a non-profit organization developing strategies to reduce drug use, hosted a one-day symposium in Washington, DC on September 29, 2014 on the future of workplace drug testing in the era of legal marijuana. (Institute for Behavior and Health, Inc. 6191 Executive Boulevard Rockville, Maryland March 2015
The early and heavy use of marijuana increases the risk of addiction to marijuana and it also increases risk of use and addiction to other drugs. (Page 6)
Marijuana use is on the rise
Quest Diagnostics’ Drug Testing Index showed that in 2013, positive drug test results in the workforce for marijuana increased nationwide by 6.2 percent. This is the first increase in positive reported drug tests in a decade. (Page 8)
The link between marijuana use and bad consequences
In addition to the link between early and heavy marijuana use and addiction, there is a strong association between marijuana use and diminished lifetime achievement; motor vehicle crashes; and symptoms of chronic bronchitis. There is also a relationship between marijuana use and abnormal brain development, progression to use of other drugs, schizophrenia, depression and anxiety. (Page 6)
Short-term effects of marijuana use include impaired short-term memory, impaired motor coordination, altered judgment and, in high doses, paranoia and psychosis. Among the conclusions reached by Colorado’s Retail Marijuana Public Health Advisory Committee charged with monitoring health effects of marijuana and released by the Colorado Department of Public Health and Environment, “We found substantial evidence for associations between marijuana use and memory impairments lasting at least seven days after last use, as well as the potential for acute psychotic symptoms immediately after use” (p. 12). Given the short- and long-term impacts of marijuana use, the drug poses a serious threat to workplace safety and productivity. The legal status of marijuana does not remove this threat. (Page 6,7)
There is abundant research providing evidence that marijuana use changes brain function, with short- term effects including impaired short-term memory and motor coordination, altered judgment, and effects of long-term or heavy use including cognitive impairment and addiction.(Page 8)
Drug-free workplace programs are effective
Drug-free workplace programs do not interfere with legitimate medical care, but they do protect workplaces against the negative effects of individuals at work under the influence of drugs, regardless of how legitimate that drug use might be. When an employee is observed to be under the influence of a prescribed medicine, the employee may be placed on administrative leave, while the legitimacy of the medical regimen is determined and any impairing effects of the medical treatment are eliminated.
Workplace drug testing is an essential tool in confronting today’s growing drug abuse problem. There is much more to workplace drug testing than just testing for marijuana. The use of other illicit drugs and the misuse of prescription drugs cause significant problems for employers and for employees. While marijuana produces more positive drug test results in the workplace than any other drug, testing for other drugs is also important. An effective drug-free workplace program includes drug testing for many widely used drugs.(Page 11)
Consider the Legal Complications of Workplace Marijuana Testing – Some of the states that have legalized medical or recreational marijuana have specifically addressed workplace drug testing in their statutes. This has implications for future marijuana statutes in other states. For example, several states allowing medical use of marijuana are now requiring an employer to show impairment before taking action against an applicant or employee who tests positive for marijuana. These provisions pose a significant limitation to workplace drug testing programs for marijuana. (Page 11)
Do not base your policy on impairment
These complex and often conflicting requirements regarding the identification of “impairment” demonstrate the value for workplace drug testing policies to be specific that the presence of a marijuana metabolite or THC in the employee’s body is itself a violation of the employer’s drug-free workplace policy. Because marijuana is a confusing issue for employers, employees and job applicants, the best way to avoid the confusion is to have a zero-tolerance policy in place that is not based on “impairment” but rather is simple and strict standard of no use. This is called a per se zero tolerance standard. Any positive drug test is per se evidence of a violation of the employer’s drug-free policy, with no necessity of showing impairment. These policies seek to prevent impairment in the workplace. (Page 12)
Marijuana impairment can last a long time, particularly among heavy users, because the THC is long-retained in the brain and other fatty tissues. Supporting the use of a high level of THC concentration in the blood to define impairment opens the way for arrests and convictions for driving under the influence of marijuana to be challenged. It is possible that employers who make the mistake of thinking that they will simply “mirror the state law” and use such a permissive standard for THC in blood for employees may find themselves on the wrong end of litigation down the road when employees cause injury or death after having tested positive for marijuana without being required to be drug-free as a condition of their employment. (Page 13)
Be confident and aggressive
The legalization of marijuana for medical and/or recreational use is not a reason to abandon workplace testing for marijuana, but rather a clarion call to review all types of workplace drug testing. This report recommends use of the per se zero tolerance drug-free workplace standard that has been in use in safety sensitive jobs and in federally regulated workplace drug testing for three decades. This standard remains in full force today in those applications. Marijuana use remains a significant concern for employers for reasons of health, safety and productivity. (Page 16)