This is a summary of a white paper by Kevin Sabet at the request of National Families in Action. What_Will_Legal_Marijuana_Cost_Employers–Complete-1 2015 The purpose of National Families in Action’s White Paper is to educate employers about how marijuana laws are changing, how these laws will affect employers’ ability to conduct business, and what employers can do to protect that ability. Kevin Sabet is co-founder of Project SAM (Smart Approaches to Marijuana). More information about the organization here.
The US Supreme Court held in Gonzales v. Raich that possession of marijuana is illegal under the US Controlled Substances Act whether or not a state legalizes the drug for medical use. Further, in Casias v. Wal-Mart Stores, Inc., the Sixth Circuit held that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.” From 2008 forward, California, Montana, Oregon, and Washington state supreme courts have upheld employers’ rights to terminate medical marijuana users who fail drug tests.( Page 14).
However, all of these findings have been based on the fact that marijuana is illegal under federal law no matter what states do. Members of Congress have introduced bills to remove marijuana from the US Controlled Substances Act to allow states to “experiment” with marijuana policy. Should this happen, the basis for these decisions will no longer be valid, and marijuana proponents can be expected to escalate their assault on drug-free workplace policies to a full-fledged war. (Page 14)
Are employees who use marijuana off the clock impaired when they come to work?
Typical marijuana smokers experience a “high” that lasts about two hours. Behavioral and physiological effects generally return to baseline three to five hours after use begins, but some memory impairments, such as the ability to filter out irrelevant information and the speed with which people process information, can last up to 24 hours after use. (Page 12)
Nine pilots smoked a marijuana cigarette and tried to fly in a simulation machine. Seven still showed impaired performance 24 hours later. Only one was aware that he was still impaired. (Page 15)
Increased accidents, injuries, and absenteeism
Employees who test positive have 55% more industrial accidents, 85% more injuries, and absenteeism rates that are 75% higher than those who test negative. The National Institute on Drug Abuse has cited several studies linking employee marijuana use with “increased absences, tardiness, accidents, workers’ compensation claims, and job turnover. (Page 19)
Impact on the ability to learn
Research shows that, compared to those who don’t, adolescents who smoke marijuana every weekend over a two-year period are nearly 6 times more likely to drop out of school.
Neuroscientists have also documented how chronic marijuana use starting in adolescence decreases the size of two brain areas thick in cannabinoid receptors—the amygdala by 7 percent and the hippocampus by 12 percent—both significant reductions. (Page 20)
Another review of the scientific literature determined that the evidence points overwhelmingly to “impaired encoding, storage, manipulation, and retrieval mechanisms [in the brains] of long-term or heavy cannabis users.” (Page 21)
Impact on memory
Using marijuana regularly before age 18 results in an average IQ of six to eight fewer points at age 38 compared to those who did not use marijuana before age 18.
One of the pioneering studies on marijuana use and memory helped set in motion a series of subsequent studies. The conclusion: “long- term heavy cannabis users show impairments in memory and attention that endure beyond the period of intoxication and worsen with increasing years of regular cannabis use.” (Page 21)
Impact on IQ
But the granddaddy of marijuana and learning studies came out in 2012 and astounded even the most cautious researchers. Scientists, controlling for factors like years of education, schizophrenia, and the use of alcohol or other drugs, followed a cohort of over 1,000 people for more than 25 years to investigate the effect of marijuana use on IQ. This study finds that using marijuana regularly before age 18 results in an average IQ of six to eight fewer points at age 38 compared to those who did not use marijuana before age 18. This astonishing finding was still true for those regular marijuana-using teens who stopped using the drug after age 38. (Page 21)
Impact on mental health
Marijuana users have a six times higher risk of schizophrenia and are significantly more likely to develop other psychotic illnesses. In particular, females who smoke marijuana show a great vulnerability to heightened risk of anxiety attacks and depression. (Page 21)
How does marijuana affect driving?
A recent review of 20 years of marijuana research should send chills down the spines of employers with safety-sensitive jobs. This can be seen most clearly with employers whose businesses depend upon or involve driving. The review confirms findings from other studies that driving after smoking marijuana doubles the risk of having a car crash. (Page 25)
How can employers ensure safety if they must show impairment rather than the presence of marijuana in the body?
Commenting on proponents’ call for impairment as a deciding factor rather than a positive test, Robert DuPont, MD, says, “A positive workplace drug test for marijuana—whether as a pre-employment, for-cause, or random test—that identifies Carboxy-THC means that there is THC in the brain of the donor of that sample and is therefore a significant concern for the employer and for other employees. (Page 26)
What Can Employers Do?
Most of the new marijuana legalization laws have not been tested. Employers are in for several years of legal challenges on many different fronts as legalization advocates attempt to assert heretofore prohibited “rights” in the workplace. An emerging marijuana industry will intensify such efforts, as it tries to expand the market to increase its profits.
To protect themselves, employers must keep abreast of changing laws and the changing marijuana landscape, as new marijuana products and services are developed that threaten workers, their families, and the public. A good place to start is National Families in Action’s The Marijuana Report.Org which tracks daily marijuana news nationwide and publishes E-Highlights, featuring the top three to five stories posted to the website the previous week.
Remember that no matter how many states legalize some form of marijuana, the drug is still illegal under federal law.
Case law creating safe and drug-free workplaces that protect employers as well as employees and the general public has been developed over more than a quarter of a century. Unless Congress changes federal law, it will take many years to undo this case law. This gives employers time to bring their policies up to date while the legalization battles are fought on several fronts.
Take action to protect your workplace
Become aware of the safety risks associated with marijuana use, and develop strategies to control the risk. Employers whose workers operate motor vehicles or machinery and those who must rely on employees’ clear-headedness, coordination, and concentration could face an increased risk of injury or costly mistakes if their employees are under the influence of marijuana.
Be flexible and adapt your drug‐free workplace policy to changing circumstances.
Educate your workers. Consult local counsel before taking action if an employee violates your policy to make sure you are still on solid legal ground.
Make management decisions about how to handle the various scenarios described throughout this White Paper as well as new situations that will unfold in the future. Revise your drug-free workplace policy accordingly.
Be flexible and adapt your policy to changing circumstances.
Train your managers
Have your managers inform your workforce about each change, explain why each is necessary, and explain how each protects workers, their families, and the public.
Educate your workers about the marijuana issue to confront some of the bewildering misinformation that surrounds us all. Emphasize the health harms of marijuana in particular and encourage workers to educate their families so they can protect their children.
Consult local counsel before taking action if an employee violates your policy to make sure you are still on solid legal ground.
Take action with fellow employers to protect all workplaces
Share with fellow employers things you can do today to protect the workplace from marijuana.
Challenge the assertion that marijuana is medicine
The fact that FDA has not approved a single marijuana medicine that 23 states allow entrepreneurs to sell means that patients have no guarantees marijuana is pure (the drug is renowned for containing contaminants, including mildew, mold, pesticides, and even pathogens, such as E. coli), safe, or effective.
FDA requires medicine makers to show a new drug is 1) pure through rigorous testing in FDA-certified laboratories, 2) safe for human use through testing first in animals, 3) safe for people to use by testing it in people who are healthy, and 4) effective by testing it in people with the disease the drug maker claims it will relieve or cure via random clinical trials. The FDA has not approved a single marijuana medicine that 23 states allow entrepreneurs to sell.
The question employers should be asking is: “Why should we be forced to pay for medical marijuana that FDA has not approved, doctors cannot prescribe, and pharmacies cannot sell?”
This means that patients have no guarantees marijuana is pure (the drug is renowned for containing contaminants, including mildew, mold, pesticides, and even pathogens, such as E. coli), safe, or effective.
This issue is ripe for employers to take on
Like medicines derived from opium, medicines derived from marijuana that FDA has approved should be added to health plan formularies and paid for by employers. But medical marijuana that states have legalized falls squarely in the domain of dietary supplements for which employers are not required to pay. (Page 41)