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Marijuana in the Workplace

• Mar 01, 2019

It may seem hard to fathom but, in 2019, marijuana is legalized for medical use in 34 states and the District of Columbia, and 10 states plus the District of Columbia have legalized recreational marijuana use. Legalization efforts have not slowed, and marijuana use in the United States continues to rise along with it. Employers are in a precarious position when tasked with maintaining the productivity of their workplaces, and more importantly, the safety of their employees, their clients, and their data in the midst of surging marijuana use. And unlike other drugs, marijuana's precarious position between legal and illegal makes it different than other impairing substances.

Marijuana is Both Legal and Illegal in Most States
Despite the widespread wave of marijuana legalization in the United States, marijuana remains an illegal drug. The federal government has held firm in classifying marijuana or cannabis as a Schedule I drug. Schedule I drugs, under the federal Controlled Substances Act (CSA), are those for which the Drug Enforcement Administration (DEA) determines there is a high potential for abuse and for which there is no currently accepted medical use. The DEA reviewed its classification of marijuana in 2016 and affirmatively chose to keep marijuana on the Schedule I list.

Schedule I drugs cannot be prescribed by doctors or distributed at pharmacies. Possession and distribution of a Schedule I substance can be criminally prosecuted in federal court. Approval for research and clinical studies on Schedule I drugs is extremely limited. Additionally, Schedule I drugs receive no oversight or regulation by the Food and Drug Administration (FDA).

While marijuana is illegal at the federal level in the United States, the federal government has generally chosen not to prosecute those who possess and distribute marijuana in compliance with state laws. Thus, marijuana inhabits an in-between zone of legality: legal and illegal at the same time. While the federal government generally does not prosecute federal marijuana possession laws, it also does not budge on treating marijuana as an illegal drug for purposes of oversight, distribution, federal disability law protection, etc. Federal requirements for drug-free workplaces still require that employees test negative for marijuana along with other illegal drugs.

Marijuana as a 'Prescription Drug'
As medical marijuana use becomes widespread, many mistakenly assume that medical marijuana use is the same as prescription drug use. However, because marijuana remains illegal under federal law, medical marijuana lacks the clinical trials and government oversight that prescription medication is subject to. Doctors operate largely blind as they attempt to "recommend" marijuana use to patients with little information about dosage, THC levels, and strains of marijuana.

Lack of oversight can mean lack of quality control, which can leave very vulnerable patients at risk of ingesting mold, fungi, bacteria, pesticides, carcinogens, and many more dangerous toxins, often directly into their lungs. Even the effectiveness of marijuana as a medical treatment has not been subjected to the rigorous testing that prescription drugs must undergo before they are permitted to be utilized as treatment.

Marinol® and Syndros® are two exceptions. Because of some of the reported medicinal properties of marijuana, the FDA approved two drugs that contain THC, the impairing compound in marijuana. Marinol® and Syndros® are used to treat patients with cancer, glaucoma, AIDS, and HIV. These approved medications have little THC but still may be prohibited in certain positions/industries (e.g., safety-sensitive).

Marijuana Use Compared with Alcohol Use
Recreational marijuana is often compared to alcohol, but for employers, there is a key difference. At this point in time it is nearly impossible to assess a marijuana user's level of impairment. A simple and noninvasive breath or saliva test can tell an employer on the spot how impaired an employee is due to alcohol use and can allow a timely decision to take an employee out of a dangerous position.

Assessing marijuana impairment is much more complicated. Oral fluid testing is currently the best practice, as it can detect recent marijuana use, exclude long-past use, and do so with a noninvasive test. Urine testing is unable to discern recent use from weeks earlier and often cannot capture use that happened within the last few hours. This being so, there is no test currently on the market that can assess the level of marijuana impairment. While science can tell us that a blood alcohol concentration of .08 percent has specific effects on a person's functioning, science cannot tell us what effect a certain concentration of THC (nanograms per milliliter) will have on an individual.

Additionally, the level of THC in marijuana still varies widely, while the amount of alcohol in a drink is highly standardized. Marijuana users, whether medical or recreational, rarely know how much THC they are consuming. This arguably makes marijuana testing all the more important, as users may not themselves realize how impaired they are and/or how long their "high" will last. Conversely, most adults have a good sense of how many alcoholic drinks will have an impairing effect on them. Until marijuana production, manufacturing, labeling, and distribution become standardized, use, safety, and wellness will continue to be a foggy area.

How State Laws Treat Marijuana Testing in the Workplace
States that legalize marijuana have a variety of ways they treat marijuana in the workplace. Some protect an employer's right to maintain a marijuana-free workplace; others make it difficult for employers to regulate marijuana use by employees. This is also complicated by state court rulings, which sometimes add additional protections for marijuana-using employees. Workplace protections are, for the most part, limited to medical marijuana, with almost no protections for employees who use marijuana recreationally. However, in the 10 states and Washington, D.C., where marijuana is recreationally legal, the law is still not cut and dry.

States That Permit Discipline for a Positive Marijuana Test
Most state marijuana laws either specifically permit employers to restrict marijuana use by employees or do not mention employers or the workplace at all. When a state marijuana law does not mention employers at all, the status quo remains in place, which is that employers may test for and discipline for marijuana use in the same manner as other illegal drugs (subject to the requirements of state drug testing laws).

An example is Colorado's medical marijuana law. The medical marijuana law provides, "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." While this may be interpreted as limiting an employer's reach only to the workplace, the Colorado Supreme Court also issued a ruling on the issue expanding it. The court ruled that an employee may be terminated from employment for testing positive for marijuana, even if the employee was using in compliance with Colorado's medical marijuana law.

States That Protect an Employee's Medical Marijuana Use
On the other hand, some states affirmatively protect an employee's right to use medical marijuana. Some state laws prohibit employers from disciplining an employee for a positive marijuana test alone if the employee is a certified medical marijuana patient. In these states, employees may be disciplined for a positive marijuana test in conjunction with other factors, but a positive test cannot be the sole reason for workplace discipline. This protection does not extend to recreational marijuana use in any state except Maine.

An example of this medical marijuana protection is the state of Arizona. Arizona's medical marijuana statute reads:

"Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1. The person's status as a cardholder.

2. A registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment."

Thus, in Arizona, a medical marijuana patient cannot receive workplace discipline for a positive drug test unless he or she was impaired by marijuana during work hours or brought or used marijuana in the workplace. Remember, as discussed earlier, proving impairment remains an issue and oral fluid drug testing remains the testing methodology that has the closest link to recent use of any commercially available drug testing method.

In other states, the laws do not protect medical marijuana use in the language of their statute(s), but their courts have interpreted protection under state disability law. In Massachusetts, the medical marijuana laws are silent on allowing or restricting workplace discipline for medical marijuana use. The state Supreme Court, however, ruled in the case Barbuto v. Advantage Sales and Marketing, LLC that the state disability discrimination law applies to medical marijuana use. The court held that refusing to hire a medical marijuana patient for a positive marijuana drug test violated the state's discrimination laws, meaning that employers are required to make reasonable accommodations for such patients.

Best Practices for Employers
Because marijuana use inhabits a gray area of the law, it is of utmost importance that employers communicate their marijuana policies clearly to employees. Employees may believe that if marijuana is legal in their state, they are free to use it without consequence. Employers should take care to inform employees of their workplace policy and to apprise them of the consequences of violating that policy.

Employers' policies should restrict marijuana use to the extent permitted by law. Workplace safety and productivity should be a top priority for employers, and marijuana impairment can have an enormous impact. The state of Colorado saw a huge climb in marijuana-related traffic deaths as well as marijuana-related hospitalizations following recreational marijuana legalization. Employers should not risk a microcosm of this within their workplaces. In all states and all industries, policies must at the very least prohibit marijuana use in the workplace as well as marijuana impairment during work hours or in the workplace.

All employers should continue to test for marijuana, using a testing method such as oral fluid testing, which indicates recent use as opposed to historical use. In states where medical marijuana users receive protection from workplace discipline, workplace policies should require employees to verify their medical marijuana authorization to a Medical Review Officer. Employers and managers should be trained to identify marijuana impairment and know what to do when an employee is suspected of impairment on the job. Policies should prohibit any marijuana use by employees in safety-sensitive positions.

Additionally, in states where medical marijuana is legal, employers should work with human resources to develop a policy for employees who request accommodation of medical marijuana use for a disability, taking care to comply with state disability discrimination laws.

This article originally appeared in the March 2019 issue of Occupational Health & Safety.