Marijuana—or “cannabis” as the emerging business likes to contact it—is large small business. It employs five instances extra Americans than the coal business, according to 1 cannabis business analyst. There are health-related marijuana statutes in 34 states and the District of Columbia. Ten states and D.C. so far also have authorized it for recreational use, and Illinois becomes the 11th state to let recreational use starting subsequent year.
Exactly where does that leave employers in search of a drug-absolutely free workplace for security factors? The answer is complex. There is no uniformity in employment and drug-testing laws, and the most universally applicable suggestions may possibly be to seek advice from your lawyer.
Altering State Laws
The federal stance on marijuana is crystal clear: Its possession and use are illegal. Marijuana nonetheless is a Schedule I substance beneath the federal Controlled Substances Act. The federal government does not recognize any health-related utilizes and considers marijuana as possessing a higher possible for abuse and dependence.
Having said that, the list of states enabling health-related and recreational use of marijuana continues to expand. Pacific coastal states like Alaska, California, Oregon, and Washington have added recreational marijuana laws to their books, as have Colorado, Maine, Massachusetts, Michigan, Nevada, Vermont, and Washington, D.C. Illinois’s recreational marijuana law goes into impact January 1, 2020.
All the states enabling recreational use also have health-related marijuana statutes, but so do Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maryland, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhoda Island, Utah, and West Virginia.
Though legalization of marijuana normally has not needed employers to accommodate its use amongst their workforce, that may possibly be altering. Some states do have disability antidiscrimination statutes that incorporate protections for health-related marijuana customers, and some have preemployment drug testing bans currently in location or quickly going into impact.
Having said that, although some states have antidiscrimination guidelines surrounding health-related marijuana or drug testing bans, quite a few also have workers’ compensation laws that need postaccident drug and alcohol testing, leaving employers to sort out these conflicts.
Limitations on Drug Testing
No matter if you can test job applicants or staff for drug use and what actions you can legally take when somebody tests constructive depends on the laws in your jurisdiction. Laws differ from state to state—and even inside states—when it comes to:
- What queries you can ask a job applicant about present or prior drug use and any arrests or convictions for drug possession
- No matter if you can need preemployment drug testing and
- How you can deal with a constructive drug test outcome.
Cities and states are chipping away at employers’ capability to test applicants for marijuana use or deny them employment when an applicant tests constructive for marijuana use. A Nevada law (A.B. 132) going into impact January 1, 2020, prohibits employers from denying anybody employment who tests constructive for marijuana, with some exceptions for specific occupations and security-sensitive roles. A comparable law goes into impact in New York City May perhaps 10, 2020, absolutely barring preemployment testing for marijuana use.
The National Security Council (NSC) has been vocal each about the impairing effects of marijuana and employers’ suitable to insist on possessing drug and alcohol-absolutely free workplaces, like the use of testing for drug and alcohol use and abuse.
When Illinois enacted its recreational marijuana act this summer season, the NSC raised issues about roadway and workplace security. The group encouraged the state legislature to also enact marijuana-impairment statutes.
The NSC also continues to survey employers about their issues concerning marijuana-connected employee impairment on the job impairment. Sixty-1 % of respondents in the NSC’s most current survey cited impairment at perform as a security concern and 55 % stated employers ought to test for marijuana use, even if its recreational use is legal.
THC, CBD Testing
The psychoactive element of marijuana is delta-9-tetrahydrocannabinol (THC), which can be detected in hair or urine through drug testing. Present testing approaches do not evaluate subjects for cannibidiol (CBD). Having said that, some CBD items may possibly include THC, and CBD item customers may possibly test constructive for THC.
Marijuana has develop into extra potent more than the previous handful of decades. In 1992, the typical concentration of THC in marijuana was three.eight %, according to the National Institute on Drug Abuse (NIDA). By 2014, it was 12.two %. Also, marijuana may possibly now be consumed in a assortment of items, like e-cigarettes and edibles ranging from lollipops to syrups to chocolate bars.
Good test benefits for marijuana use jumped by extra than 33 % involving 2015 and 2017, according to Quest Diagnostics, a national testing firm. Personnel who sometimes use marijuana may possibly test constructive in urine testing inside 1–3 days of use, according to Quest. Frequent or chronic customers may possibly test constructive up 30 days soon after their final dose.
Exactly where does OSHA stand? Drug use on the job is an apparent security hazard nevertheless, when testing staff for substance use following a workplace accident, employers ought to be cautious not to run afoul of OSHA’s antiretaliation guidelines. For the reason that reporting a perform-connected injury or illness is a protected activity, and imposing unfavorable consequences for protected activities is prohibited beneath the recordkeeping guidelines at 29 CFR 1904.35 and 29 CFR 1904.36 and by the whistleblower protection guidelines in Section 11(c) of the Occupational Security and Wellness Act (OSH Act), OSHA has indicated that automatic drug testing of any employee who reports an injury could constitute illegal retaliation.
OSHA believes that if staff know they will be drug tested following an on-the-job injury, regardless of regardless of whether or not drug use was a aspect in the incident, staff will be significantly less probably to report injuries. And in circumstances exactly where drug or alcohol use is unlikely to have triggered or contributed to an incident, requiring staff to submit to a drug test could be thought of retaliatory.
Having said that, OSHA does not ban postaccident drug testing altogether. As an alternative, it needs employers to have a valid security-connected cause for performing a postaccident drug test, such as contributing to a root result in evaluation. If drug testing is made use of to investigate and establish the root result in of an incident, then all staff whose conduct could have contributed to the incident ought to be tested, not just the employee or staff who reported injuries.
The agency also tends to make exceptions for employers that are needed to conduct postaccident drug testing beneath an additional state or federal law, such as the Division of Transportation (DOT) guidelines for industrial drivers or a state workers’ compensation statute.
Having said that, OSHA’s scrutiny of drug testing applications applies only to postaccident drug testing. On October 11, 2018, the agency clarified that examples of permissible drug testing incorporate:
- Random workplace drug testing
- Drug testing unrelated to the reporting of a perform-connected injury or illness
- Drug testing beneath a state workers’ compensation law
- Drug testing beneath other federal laws and regulations, such as DOT guidelines and
- Drug testing to evaluate the root result in of a workplace incident that harmed or could have harmed staff.
Actions for Employers
It may possibly appear as if the tools employers can use to combat drug use on the job are becoming fewer by the day. Having said that, you do not have to tolerate marijuana use on your premises or a worksite you manage, and you do not have to appear the other way if staff show up for perform impaired.
It may possibly be beneficial to feel about marijuana use as analogous to alcohol consumption. Would you place up with a drunk or chronically hungover worker? Personnel ought to be match for duty at perform, regardless of the possible supply of impairment.
A clearly written drug and alcohol policy is a essential step for employers searching to defend their interests and steer clear of liability. But 1st, seek advice from with legal counsel about the predicament in your municipality, county, and state. Inquiries to address incorporate:
- Is there a ban on preemployment testing in your location?
- Are there restrictions on random drug testing?
- Are there any antidiscrimination laws for health-related marijuana cardholders in your locality?
- Are there relevant privacy protections in your state?
- What actions can you legally take if an employee tests constructive?
Your predicament definitely depends on exactly where your business is situated and exactly where you operate. Health-related marijuana cardholders in New York have discrimination protections beneath the state’s disability law. A Massachusetts court permitted a worker to sue for disability discrimination soon after testing constructive for marijuana. Some states location restrictions on asking applicants about their criminal history, like queries about arrests or convictions for marijuana possession. Having said that, some states do not give protections for health-related marijuana customers, even if they only use marijuana off duty.
Not only is there no uniformity in the law, but the laws are continually altering. You—or your legal counsel—must assessment the present statutes and current case law in your place.
The NSC recommends that a workplace drug and alcohol policy incorporate:
- A statement of the goal of the policy, such as worker or neighborhood security, and a clearly defined scope of the policy
- Clear definitions of what constitutes misuse, regardless of regardless of whether substances are more than the counter or prescribed, legal or illegal, or synthetic or otherwise
- A statement of who the policy and applications cover
- Applications of employee education, such as a substance-absolutely free awareness plan and employee help applications offered for employee substance abuse or addiction remedy
- A statement describing beneath what situations drug or alcohol testing will be carried out, like any policy on the confidentiality of test benefits
- Procedures to make certain a fair testing procedure, like any confirmation testing, use of health-related assessment officers, and worker protections against retaliatory testing
- Coaching for staff, supervisors, and other individuals to recognize impairment from substance use and
- Procedures for dealing with impaired workers.