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.

Legalized Marijuana—The Popular Perspective

As a safety manager, an HR director, or a company executive, remaining confused and silent toward the issue of legal marijuana may prove to be a very costly mistake for you and your company.

A recent Gallop poll from October 2016 showed support for legalized marijuana increase to nearly 60 percent in the United States.1 Approval is not just coming from Millennials; it crosses generations and location, from Baby Boomers through Generation X and from Miami to Seattle. As popular support soars, the question remains: does everyone truly understand what they are supporting and why? And are they willing to pay the cost of that support?

After the November 2016 election, 28 states plus the District of Columbia have some form of legalized marijuana. Congress passed a ruling two years ago barring the Department of Justice from putting federal funds toward obstructing medical marijuana operations in states with legal markets for the drug. New legislation has already been introduced in 2017 to extend these provisions. In contrast, the federal government upheld the drug's classification as a Schedule I controlled substance in the United States, keeping it illegal for any doctor to prescribe marijuana.

Overwhelmed or confused? It is nearly impossible not to be. As an employer, that may cost you millions.

To Market, to Market…
In the United States, prescription and over-the-counter (OTC) drugs are considered unsafe until proven safe. Safety is demonstrated through a series of stringent clinical trials, and before the FDA will approve a drug to be legally sold, it must show "substantial evidence" that it is both safe and effective for each of its intended uses. Once the FDA approves the drug, it must be manufactured under close scrutiny, packaged with best dosage recommendations, and be labeled to include the conditions the drug has been proven to treat, the known side effects, any contraindications or special conditions where using the drug would pose too much risk, and unsafe interactions with other drugs. Simply stated, it is a complex and arduous process.

So is marijuana truly being marketed for medicinal purposes? And if so, why has it not been required to maintain the same safety standards as other drugs? Proponents will argue that it is because the government has not allowed enough marijuana to be legally grown to test. Yet, there is little effort and legislation to force production so manufacturers can perform testing for stringent clinical trials. If producers are truly concerned with providing safe, affordable alternative medicine to the market, why have they sidestepped the safety protocols set in place by the FDA, DEA, and Congress?

Perhaps the answer is that the push for medical marijuana has been a veiled attempt to bring marijuana to market in general. If marijuana is not strictly medicinal, then it really must fall into one of two other groups: dietary supplements and herbal remedies or recreational. At that point, it must follow the path of supplements, herbal remedies, or alcohol in the United States.

Unlike prescriptions and OTC drugs, the Dietary Supplement Health and Education Act (DSHEA) of 1994 put supplements in the same category as food and therefore under different regulations than drugs. DSHEA requires that dietary supplements must not pose "a significant or unreasonable risk of illness or injury when used as directed on the label or with normal use if there are no directions on the label." A manufacturer must provide the FDA with reasonable evidence that any new supplement or single ingredient sold before 1994 is safe before it is marketed to the public.2 So although manufacturers of dietary supplements are not required to test in clinical trials, the FDA has the authority to ban supplements that have been proven to pose a significant health risk after they have caused harm to Americans. Yet, there is no requirement for health care providers or consumers to report adverse effects, which leaves the window wide open for consumers to experience serious and/or fatal risks without the FDA becoming aware of it.

So will marijuana be treated as a dietary supplement or an herbal remedy? As employers, taxpayers, and consumers, are we just waiting for the other shoe to drop and the costs of harm to start piling up?

OK. Let's back up for a minute. Skip legalization of marijuana for medicinal purposes and supplemental benefits and call it recreational. The 21st Amendment gives states the right to allow the manufacture and sale of alcohol in the state, govern imports and exports of alcohol, control distribution, and monitor and enforce possession. The Federal Alcohol Administration Act sets the labeling and advertising rules and prevents consumers from being deceived by misleading statements as to the quality and identity of the product. So why not apply the same kind of regulations to marijuana? Following equivalent standards, producers of marijuana products would be required to comply with state laws concerning imports, exports, distribution, monitoring, and enforcement. They would also be required to fully list the contents of their products and clearly communicate the risks involved with using them. Then consumers would no longer be in the dark on THC levels, origin, additives, and other pertinent details.

Just as marijuana producers are sidestepping the rules that exist for prescription medicine and supplements, they are circumventing basic rules in place to keep recreational alcohol consumption above board. It seems that marijuana is slipping through the cracks and those in the marijuana industry would prefer you continue not to notice.

Remind Us Again, Why Do We Care?
Beyond the efficacy of any of these control processes or the arguments one might make about the role of government in our personal lives and personal choices, each one of us must consider the impact of marijuana as it forges its unique path to legalization.

Consider the Costs
For employers, safety in the workplace is critical. The doctrines of negligent hiring and respondeat superior both apply to employers’ liability for dangerous employees. Respondeat superior is limited to an employee’s acts within the scope of employment. Negligent hiring imposes liability on an employer when an employee commits an intentional tort, most often outside the scope of employment, against a member of the public. The employer can be held liable when the employer knew or should have known that the employee might engage in injurious conduct toward third persons.

Failing to perform pre-employment screening, failing to screen for marijuana, or failing to test when an injury or accident could have been the result of drug use leaves employers open for lawsuits. Cases like Minnesota’s Ponticas v. K.M.S. show that "although an employer will not be held liable for failure to discover information about the employee’s incompetence that could not have been discovered by reasonable investigation, the issue is whether the employer did make a reasonable investigation. The scope of the investigation is directly related to the severity of the risk third parties are subjected to by an incompetent employee." (emphasis added).

As an employer, the health and wellness of your employees is essential. It is important not only for a productive workplace, but the rising cost of health care is one of the heaviest impacts on today’s employer. Consider the potential effect to health care costs.

  • NIDA's recent study shows that the potency of marijuana has "risen by a factor of three in the last thirty years." The study found potency values close to 30 percent, up from 10 percent just a few decades ago, and goes on to state that "the higher THC content is responsible for more trips to the emergency room, more psychotic behavior and damage to the brain."3
  • Smoking one joint is equal to smoking five cigarettes; because marijuana smokers tend to take longer drags, they end up with three to five times more tar and carbon monoxide in their bodies. The smoke contains numerous chemicals that are similar to tobacco products, but with 50 to 70 percent more carcinogens (which cause cancer) than tobacco. Therefore, frequent marijuana users are just as likely to experience chronic cough and heightened risk of respiratory illness and infection as their tobacco smoker counterpart.4 Of every $10 spent on health care in the U.S., almost 90 cents is due to smoking, a new analysis says. Using recent health and medical spending surveys, researchers calculated that 8.7 percent of all health care spending, or $170 billion a year, is for illness caused by tobacco smoke.5 How long until marijuana smoke catches up?
  • Marijuana is the #2 substance of abuse in America, second only to alcohol. In 2006, excessive alcohol consumption cost the United States $223.5 billion. The cost of marijuana abuse will rise as use, acceptance, and legalization continue to gain ground.
  • Marijuana is addictive just like alcohol. Marijuana impairs a person's ability to operate a car or other heavy machinery just like alcohol. Marijuana leads to more workplace accidents just like alcohol.6

Thankfully, employers can use drug testing to limit liability in the workplace.

Updating your policy to follow the federal guidelines for Schedule I drugs, to maintain a drug-free workplace, to comply with state voluntary and mandatory laws are all still acceptable. Using innovative technologies like oral fluid testing to detect recent use, providing training to managers and supervisors to detect use, and maintaining drug testing practices in hiring and employment are all recommended. Each will limit your liability and help prepare your company as legalization continues.

Unfortunately, the states reaping the benefits of the tax dollars won't help to pay your legal bills to defend even a winning lawsuit. The growers likely will be unwilling to shoulder the burden of your rising health care costs. The marijuana distributors are most certainly not going to set up a fund to help employers offset the increased worker's compensation claims and insurance premiums. The clinics will be hard pressed to chip in to pay the claim when a customer is injured due to an unsafe workplace.

As a safety manager, an HR director, or a company executive, remaining confused and silent toward the issue of legal marijuana may prove to be a very costly mistake for you and your company.

6. CDC, April, 2014

This article originally appeared in the February 2017 issue of Occupational Health & Safety.

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