Marijuana Need-To-Know For Employers
Can Employers Still Drug Test With Legalized Marijuana?
Colorado’s Amendment 64 states;
“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
Essentially, this protects the employer’s right to enforce their drug policies.
Yes, they can drug test for pre-employment screening, post-accident incidents, random pools, and for reasonable cause. It is in the employer’s best interest to enforce their drug policies consistently in order to prevent accidents and show they are following safe and drug-free workplace practices.
Recreational marijuana regulations have caused some confusion among employees about their right to use.
A thorough read of the Amendment in Colorado, for example, is very clear that employees do not have “an unfettered right” to use marijuana or be impaired in the workplace.
Many think the legalization of recreational marijuana comes with some sort of ban on drug testing, but this is clearly not the case.
In fact, positive drug tests have spiked sharply according to reports from drug testing labs, showing either a lack of understanding of the law or a disregard for safe workplace parameters.
To alleviate confusion – here is some good advice: the presence of the marijuana metabolite “THC” in the system is considered a positive drug test and not allowed by the majority of company policies with a zero tolerance environment.
Employers should, and must, maintain their written policies with consistency in a way that provides education and awareness to their employees, so the expectations are clear. Employers must understand the effects of on-the-job impairment that are specific to marijuana.
Appropriate workplace testing should include proper use of random and reasonable cause drug tests that meet specific criteria for protecting everyone involved in the workplace.
Should The Workplace Loosen Policies for Marijuana?
We’ve been asked if it would be best to relax workplace drug policies as a result of marijuana legalization. If a company is determined to do this – we will accommodate their wishes and help them navigate those waters.
However, we are finding this is not a simple switch for several reasons.
Some companies want to increase the ng/mL tolerance in their screening cut-off levels. There is lots of misunderstanding as to what that means exactly and how much should be allowable.
Current cut-off levels for initial screenings are typically 50 ng/mL and for confirmation screening it is 15 ng/mL. The screening cut-off is what the initial screen will test down to.
The confirmation test is done only if the initial screen comes back with a non-negative result. The confirmation test, which is done at a certified lab, will test to a lower quantity in order to confirm or disprove the substance was in the sample.
An employer recently asked if 150 ng/mL would be suitable as a confirmatory acceptable amount of THC in an employee’s system.
Here is what we know:
The Colorado DUID (Driving Under the Influence of Drugs) statute is set at 5 ng/mL.
That is not a typo, that says “five”.
Those who drive with a consistent amount of THC in their system DO function at levels of impairment when it comes to multi-tasking. Ask yourself this question – if someone is functioning alcohol-impaired, would we let them perform their work place tasks?
So how do we determine if someone is marijuana-impaired on the job?
There is a great deal of misunderstanding about impairment. Impairment goes beyond the “high” phase.
Impairment can last well over 24 hours for a user who has smoked or consumed THC of very low quality,
however most subjects would report they do not “feel” impaired. This has been repeatedly proven in laboratory testing.
If employers allow higher screening levels for THC in their employee’s systems – they are opening themselves up to workplace impairment that is allowable.
Allowable impairment means changes to workplace safety policies, strategies and responses. Impairment is well known to have higher rates of accidents, injuries, lost work time and lost revenue. Work Comp rates could increase, as well as accident-related costs.
If you are considering relaxing your policies, ask yourself – are the consequences worth the risk?
Getting Rid of Drug Testing All Together
Unfortunately, we have seen some companies choose to get rid of drug testing.
We want our employers to be aware that by dropping drug testing altogether, you will no longer be testing for other dangerous drugs. The standard 5 panel drug test will screen for THC, cocaine, methamphetamines/amphetamines, PCP and opiates.
According to Quest Diagnostics, the positivity rates for cocaine and methamphetamine have been on the rise over the last few years.
These drugs are both stimulants and can cause people to react quickly and without thinking logically. In turn, this causes a huge safety concern for the employee and anyone near the employee.
America is also in the midst of the Opioid Epidemic.
Many Americans are abusing their prescription opioids in order to get high. In many cases, this is leading to heroin and even methamphetamine use when the doctor stops prescribing to the patient or their prescribed dose is no longer strong enough to feel the high they want.
According to the Substance Abuse and Mental Health Services Administration (SAMHSA), the use of heroin is rising to an alarming degree. In a report, findings showed that;
“The number of people reporting that they have used heroin in the past 12 months rose from 373,000 people in 2007 to 620,000 people in 2011. Similarly, the number of people dependent on heroin in the past 12 months climbed from 179,000 people in 2007 to 369,000 people in 2011. The number of people starting to use heroin the first time in the past 12 months also increased from 106,000 people to 178,000 people during the same period.”
Sadly, these trends show no sign of slowing down. According to SAMHSA, in 2016, there were 948,000 heroin users.
If your company feels the need to remove THC from your drug testing policy, we can accommodate that.
However, we highly suggest you continue to screen for the other drugs that cause safety concerns for your employees, clients, and yourself. Enforcing policies through routine drug testing is the best practice method for ensuring individuals struggling with issues can get the help they need for their best possible future.
Ultimately, What Will Marijuana Cost you as an Employers?
From the Nation Families in Action Non-Profit Organization;
“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. The adage that an ounce of prevention is worth a pound of cure has never been more relevant. Employers have a significant opportunity to monitor both marijuana ballot initiatives that advocates are proposing and bills that state legislators are writing to protect their interests and those of their employees and the public…This White Paper examines the complexities employers are facing or will face as marijuana is legalized for medical or recreational use in various states. As litigation in these states unfolds and begins to build case law, we ask several questions employers must answer now and in the future.”
Topics included in the paper include: Litigation, Productivity, Safety, Flexibility, Compliance, Problems Legalization Brings, and What Can Employers Do?
To read the full white paper, you can access it here.