The impairment argument is incredibly complex. Many employers use the term in workplace drug and alcohol policies but this may not be the most prudent choice as marijuana impairment cannot necessarily be proven beyond a reasonable doubt.

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Trends in Marijuana Legalization: A Wake-Up Call for Employers

This year, potentially nine U.S. states will contend with new recreational marijuana ballot initiatives. Among those, Arizona, Massachusetts, Nevada, and California are the target areas for expanding the treatment of marijuana like alcohol, which may produce significant outcomes to the workplace landscape. Various other states will grapple with introducing or widening medical marijuana policies, widely viewed as the first step toward becoming recreational-marijuana friendly, but consider this: If California alone has a change in law, one-sixth of U.S. employees will live in states where recreational marijuana is legal.

You may be thinking, "So what?" As the proponents supporting legalization argue for a tax-and-regulate scheme that could potentially bring marijuana under control (a philosophical argument that has not yet been proven successful), we tend to hear the positive-sounding arguments and think, "Okay, let's try it," without fully understanding the consequences and implications in all facets that affect our day-to-day life. A broad cross-section of people feel that because they do not use marijuana, changing laws will not affect them one way or another. But is this accurate?

A review of the employer allowances in the newly proposed legislative framework(s) for states with pending proposals shows a concerning trend toward restrictions of employers' rights. Whereas the first few states that implemented laws permitting the recreational use of marijuana contained strong statements in favor of employers' rights, more recent versions of similar proposals contain wording that is quite concerning. For example, Arizona's initiative creates a strong argument that, although an employer can have policies restricting the use of marijuana, the employer cannot discipline the employee until they can prove the employee "(1) performed a task under the influence (2) that constitutes negligence or professional malpractice. (AZ: The Regulation and Taxation of Marijuana Act)" This is a far cry from zero tolerance and not in line with how we would expect alcohol to be treated in the workplace.

We also must pay attention to the use of the word "restrict." During the 2013 regulatory board hearings for legal marijuana in Colorado, attorney Kimberlie Ryan of the Ryan Law Firm submitted a memo in which she specified that while employers may restrict marijuana use in the workplace, it was never intended that they should be able to prohibit employees from legal marijuana use (Amendment 64 Implementation and Employee/Employer Issues). The idea purported to the Banking, Taxation and Civil Law workgroup as part of the Governor's Task Force to Regulate Marijuana in Colorado was this: Only safety-sensitive employees should have restrictions on marijuana use.

When an employer looks at their staff and rules out safety-sensitive employees, who, then, should be allowed to work while under the influence? Does only DOT define "safety sensitive" in your workplace? Or do you have another set of identifiers for risk? If you have other definitions of "safety sensitive" in your workplace or industry, are they recognized by the state? Outside of safety sensitive, should your accountant, HR manager, receptionist, or retail associate be able to work while under the influence? What about your sales staff? Taking a logical analysis of these ideologies to the natural conclusion, employers must recognize that they may not be fairly represented in marijuana legalization ballot initiatives and the changing laws that ensue.

A recently implemented medical marijuana provision in the state of Illinois says that employers may not discriminate against any employee participating in the state's medical marijuana program. (IL Cannabis Control Act) Although employers are entitled to participate in the federal safe and drug free workplace program, the definition of discrimination is not stated, which leaves employers wondering what will happen when a contradiction occurs.

The agenda toward marijuana legalization is thoroughly planned and executed. Upon an extensive review of websites, fundraising efforts, talking points, and campaign strategies by groups such as NORML (the National Organization to Reform Marijuana Laws), the Marijuana Policy Project (mpp.org), and the Drug Policy Alliance (DPA), it is clear that the overarching goals are to a) socially normalize marijuana use as acceptable and harmless, b) advocate for the individual's right/freedom to use marijuana without reprisal, and c) restrict the ability of any outside entity to prevent individual marijuana use.

A substantial issue with this mission is that marijuana is not, in fact, harmless. This is a movement predicated on faulty assumptions and notions that, while intending to create harm reduction, is moving toward increased risk to public health and safety, and we will see it unfold dramatically in the workplace.

The direct impact will be felt by employers as enforcing policies that comply with the Federal Safe and Drug Free Workplace Act conflict with state laws that allow personal use.

How will this happen? Consider another phrase in Arizona's proposed language: "A person may not be penalized by this state for an action taken while under the influence of marijuana or a marijuana product solely because of the presence of metabolites or components of marijuana in the person’s body or in the urine, blood, saliva, hair or other tissue or fluid of the person's body." This presents a fundamental problem and a detrimental precedence for establishing a basis for employee discipline or termination based upon a positive drug screen.

Hurdles to Proving Impairment
There are already tremendous hurdles when it comes to "proving" impairment, as evidenced by problematic driving cases in Colorado. In a stunning acquittal of a driver who tested nearly four times the legal per se limit for marijuana and failed a roadside sobriety test, the attorney successfully convinced a jury that because the defendant, Melanie Brinegar, used marijuana daily, her tolerance levels were high enough that she was not impaired (Hernandez).

The impairment argument is incredibly complex. Many employers use the term in workplace drug and alcohol policies, but this may not be the most prudent choice as marijuana impairment cannot necessarily be proven beyond a reasonable doubt. Yes, an employee may behave in an impaired fashion, however, reliance upon a single criterion such as a positive drug screen can allow an attorney to argue that the presence of drugs in one’s system means absolutely nothing. How can this be? As with alcohol, those who use any substance with regularity do build up tolerance, which allow them to have large amounts in their system and remain at fairly baseline skill levels overall. Does this mean maintaining high amounts of the substance in a person's system is acceptable? No, it does not. But in the case above with the driver, the jurors allowed it because they did not understand that the brain becomes saturated with THC, which can render a person under the influence for long periods of time as a result of chronic marijuana use (Institute for Behavior and Health).

This lack of understanding, combined with social trending, seems to forecast a near future where employers will be restricted from: discrimination against an employee who chooses to use marijuana for medical ailments, making disciplinary decisions based upon a positive drug screen, or taking action against an employee for being under the influence and forced to "prove" impairment, leaving concerns that employers will quite simply be left in a situation that demands acceptance.

Acceptance of employee marijuana use means increased accidents and injuries, loss of workplace productivity, increased workers’ compensation claims, and employee turnover, to name a few problems (National Institutes of Health). These losses have real dollar value that impacts small-business owners considerably. Ultimately, the most costly battles will be fought in the courts at the employers' expense. Weakening or removing employers’ rights for a safe and drug free workplace ultimately threatens all of us.

Keep Up with Documentation and Training
While these policy challenges are at the forefront of the legalization movement, employers are in the trenches dealing with very real day-to-day challenges that come with the evolving marijuana-based product lines, in the form of concentrates and edibles. THC cartridges for vapor devices can be used openly, as well as a variety of other undetectable methods allowing under-the-radar use during work hours. A new product found in a Denver marijuana retail store provides an extremely high potency of THC oil to be applied to the skin via a "roller ball" device (similar to a deodorant stick, only much smaller). When asked if the product causes impairment, the bud-tender enthusiastically said, "Oh, yeah." When further questioned about whether an employee would fail a drug test after using this product, the response was, "Absolutely, yes." (Alex)

Now, more than ever, it is vital for employers to act with consistency in their policy enforcement and to carefully document instances of any behavior that is outside the norm for an employee, in addition to verification of potential substance use that could simply confirm problematic conduct. Staff in human resource and supervisory positions must receive detailed, high-quality training on recognizing the signs and symptoms of substance use with role-play scenarios that will enable them to approach a Reasonable Cause situation.

Employers must educate themselves regarding best practices in drug testing, such as the use of a Medical Review Officer to verify positive drug test results and best devices (such as oral fluid) for detecting recent drug use. Ultimately, trade groups, membership organizations, and labor unions should be paying close attention to the cost of deteriorating employer rights to a safe and drug free workplace. We must be aware, proactive, engaged, and participating in the discussion to ensure that we have the ability to maintain strong, safe, productive, and healthy workplaces.

References
1. Alex. Bud Tender. Jo McGuire. Oct. 15, 2015. Interview.
2. Amendment 64 Implementation and Employee/Employer Issues. Minority Report, Taxation, Banking and Civil Law Workgroup. CO Governor's Task Force to Regulate Marijuana. Jan. 16, 2013. Memorandum.
3. AZ: The Regulation and Taxation of Marijuana Act. No. Section 43-108. State of Arizona. 2015. Electronic.
4. Hernandez, Phillips. "Colorado Still Not Sure Whether Legal Marijuana made Roads Less Safe." The Denver Post, Dec. 29, 2015. http://www.denverpost.com/news/ci_29322609/colorado-still-not-sure-whether-legal-marijuana-made
5. IL Cannabis Control Act. No. IL HB 4357. IL 99th General Assembly. 2015. Document.
6. Institute for Behavior and Health. Workplace Drug Testing in the Era of Legal Marijuana. White Paper. Rockville, MD: IBH, Inc., 2015. Report.
7. National Institutes of Health. Workplace Interventions for Drug Abuse. Publication. Rockville, MD: NIDA, 1998. DrugAbuse.gov.

This article originally appeared in the February 2016 issue of Occupational Health & Safety.

About the Author

Jo McGuire is an advocate, speaker, and writer for safe and drug-free workplaces, families, and communities as the founder and President of Five Minutes of Courage. She also serves as the Senior Project Manager for TSS Inc, a workplace screening services provider, specializing in workplace drug and alcohol policy writing. She was appointed as a member of the Taxation, Banking & Civil Law workgroup for the Colorado Governor’s Task Force to regulate Amendment 64 in Colorado due to her expertise in the field of workplace drug and alcohol testing. She is a national conference speaker, published author, and a founding affiliate of Colorado’s Smart Approaches to Marijuana.

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