Addressing The Marijuana Bully In The Workplace
You had a feeling this call might come and now your client, the owner of a company, is on the phone. “We’d like to go ahead and remove THC from the drug test panel. If I test for it, I won’t have any employees left! I have no choice but to stop testing for marijuana because everyone is using it.”
It’s amazing how many times those of us in the drug and alcohol testing industry are faced with this dilemma and it happens in spite of company policies that state, “We are a drug-free workplace.”
In states with existing or new marijuana laws, employers are finding that more of their employees are consuming marijuana. Employers usually learn this when an employee is selected for a random test, or when the employee begins manipulating the employer with rhetoric, such as “marijuana is not against the law, and your drug testing is illegal”.
It’s been amazing the stories we hear, and the phone calls we often field, from employers who are frustrated, confused, and in search of answers. Answers to the quandary of marijuana use as it pertains to the drug-free workplace environment.
The challenges are so significant that one Alaska-based company recently altered their drug and alcohol policy to read, “We are a safe and productive workplace”. Yes, you read that correctly. No mention of remaining drug-free. In spite of the fact that drug use significantly impacts employee productivity, absenteeism, accidents, injuries and worker’s compensation claims (Zwerling).
Why are employers making this choice, throwing up their hands and giving-in to drug use trends?
Each of us has either observed, experienced, or witnessed individuals being bullied. Since the legalization of marijuana, many of us have repeatedly experienced employers who are bullied by their very own employees. Having to grapple with the legalization of marijuana versus hiring employees to fill positions, our goal should be to provide understanding and recognition of how employee marijuana use affects the employer long-term. The following describes a battle that one client has endured.
Chuck describes the situation, “It’s important to give you a little background about this client. Their company produces a product that can be found in each of our homes or workplace. They have both DOT employees and non-DOT employees. There are two types of drug tests in use: DOT-mandated lab-based testing and Non-DOT rapid screen testing.
“Because most of the workers are seasonal, yearly hiring campaigns are needed to fill those positions. The employer often hires employees within a relatively short period, and utilizes their services for a fixed amount of time.
“Understanding this, we drug tested approximately 172 individuals in 2016. Of those, 25%, or 43 individuals, tested positive for marijuana, or refused to test. Of those 43 individuals, nine were presumptive positive drug tests, and 34 refused to test. What's important to understand is that the 34 individuals who were test refusals had samples which were out-of-temperature range. When confronted with this information, these individuals either admitted to, or were found to be in possession of fake/synthetic urine.
Chuck continues, “Losing 25% of your applicants due to either positive test results, or test refusals as a result of using fake/synthetic urine, would put a dent in anyone's manufacturing business. This was of considerable concern for the owner of this company.
“Supervisors who were used to having a fully staffed crew were now running their shifts much leaner than in the past. This caused the supervisors to complain and question the validity of drug testing. One of the supervisors stated, ‘If they’re not high on marijuana at the time that they’re at work why does it matter if they smoke marijuana?’ They also asked, ‘If they’re not high, can't we just hire them anyway?’
“The owner received so much pushback, blaming the drug testing for their inability to fully staff their shifts, he felt he needed a workable solution to the problem. He asked if those who were testing positive were high.”
There is a lot of misunderstanding surrounding the issue of marijuana impairment. Those who support marijuana use will often claim their regular use helps them build up such a tolerance to the drug that they no longer become impaired from regular use. Sadly, employers are prone to buy into this fiction, adding to the pressure of tolerance for the drug. However, a study from the Scripps Research Institute shows that psychomotor performance can continue to show observable impairment in chronic cannabis users even three weeks after continued, monitored abstinence (Bosker).
In this case, Chuck explained to the owner that workplace drug testing was not designed to determine whether an individual was high or not. Rather, tests detect the presence of drugs in the individual’s system. The conversation then turned to the detection windows of both urine and saliva testing. The window of detection time is less for a saliva test, than a urine test.
The owner concocted the solution to his problem. He wanted to continue testing the new employees with the six-panel rapid screen testing already in use. If an individual came back presumptive positive for marijuana from the rapid test, they would be given a saliva test. If the results of the saliva test were negative, he would then hire the employee based on his feeling that they were not high.
Chuck explains, “I spent time speaking to the owner and explaining why, in my opinion, this could be disastrous not only to his company, but also to his employees. I explained that by manipulating the testing process to receive the results he was looking for, he could potentially open his company, and himself, up to legal action. If the employee that was hired using this testing combination was to hurt him/herself or somebody else during their employment, the liability could fall on the company.
A lack of basic information and facts are leading to similar poor decision-making by employers nationwide, as various forms of marijuana legalization touch states around the U.S.
Employers are misinformed by employees who bully or manipulate the employer into believing that there is nothing an employer can do, whether the marijuana use is considered recreational or medicinal.
One employer in Illinois recently discounted an employee’s positive THC random drug test result because the employee claimed, “I was on vacation, on my own time, and I visited Colorado where marijuana is legal. You can’t punish me for something I did in a ‘legal’ state two weeks ago.” The employer spoke with Jo McGuire to find out what he should do moving forward.
Jo recounts, “When I asked the employer what his policy allowed, he stated, ‘Zero tolerance. But does that only apply when the employee is in the state?’ my response was, ‘Where did the drug test take place?’ The employer was clearly feeling intimidated by his employee’s insistence that taking action against him would be a violation. However, there is nothing protecting an employee in this situation, he/she has a responsibility to arrive at work prepared to perform duties in a safe manner and the company policy insisted that means drug-free.
The need to provide proper information, education, and guidance is part of our professional responsibility, as certified collectors, TPA’s and service agents. This is the bigger picture, and is part of the challenge that we sometimes face as we serve our clients.
Another example of the importance of education comes from a national company based in Colorado that Chuck Marting also serves. The employer’s confusion has been profound.
During a quarterly Non-DOT random drug testing period, a 31-year tenured employee of the company tested presumptive positive for marijuana on a rapid screen test. The employee admitted that he wasn’t surprised, stating he had eaten some marijuana edibles at a family gathering the previous weekend (two days prior to the random drug test).
The employee then explained to the employer that he thought since marijuana was now legal, he could consume marijuana without getting into trouble at work. Because of this incident, a review of the company’s drug-free workplace policy was completed. It was determined that several updates were needed.
Due to the employee’s explanation, the employer followed their second chance policy with the employee. The presumptive positive test was sent to the lab for confirmation and MRO review. The employer then scheduled a follow-up test for this employee 10 days from the last random test. When the follow-up test was conducted, the employee was found to be negative for all drugs tested, including marijuana.
Several important lessons were learned from this one experience:
1. Employers need to review, update, and be familiar with their company’s drug-free workplace policy. If you provide this service as a TPA, please be aware that your clients may need refresher training on how their policy applies to marijuana.
2. Employees, as well as supervisors, must be updated on changes to the company’s drug-free workplace policy. With these updates, there should be written documentation signifying that all employees and supervisors understand and know what the company policy is concerning recreational and medical marijuana in the workplace. Part of the policy should focus on how the use of marijuana, even on an employee’s own time, could affect their work and employment.
3. Ensure that employers have the tools needed to recognize and identify impairment in the workplace.
This example is important as several TPA’s are seeing increases in lab-based follow-up testing after THC positive test results have led to SAP instructions for those employees to participate in treatment programs as a condition of second-chance policies. In southeast Alaska, Renee Schofield of TSS Inc reports seeing follow-up testing numbers triple over the course of one year. About the need for more education, Renee says, “Legalization education has not been handled, as the marijuana industry promised. The rise in non-negative marijuana results are evident on many fronts, most notably, in the Department of Transportation section of our screening. Federal regulations are still zero tolerance, placing those not fully understanding or ignoring the rule, into a non-negative situation. Falling into follow up testing status is expensive and time consuming. Employers and families suffer when regulations are not clearly communicated by all.”
A critical facet of this education includes a more intensive focus on Reasonable Suspicion/For Cause training by service agents. Contemporary marijuana products are much more than “just a little pot”. Greater potencies and chemically enhanced extracts produce side-effects that can mimic what have long considered to be “harder” drugs such as meth, heroin and crack cocaine. New ingestion methods, such as vapor-pens (vaping), teas and sodas do not produce the tell-tale smell, traditionally used as a sure-fire means for detecting recent marijuana use. These products may also contain extreme serving amounts in a single dose which can lead to intensified reactions, particularly if the use is “marijuana naïve”. The state of Colorado created a public safety campaign to warn those new to marijuana use with a slogan of “Start low and go slow. (CDPHE)”
This product, CannaPunch, OMG Bold contains 151 mg of THC. The 1 pint drink is 15 servings of THC.
Source of photo: https://www.behance.net/gallery/8420401/CannaPunch-(Logo-packaging-promotional-materials)
In fact, these newer products cause enough problems for consumers that marijuana-related Emergency Room visits have more than doubled since recreational marijuana became legal in Colorado (CDPHE, Health Statistics and Evaluation Branch). This matters because employers are widely under the impression that consuming pot it similar to having a glass of wine with dinner. But that is merely a clever marketing slogan by retailers that is not based in fact.
Dovetailing with higher potency products, comes longer lasting impairment, which many employers do not understand or consider when altering their policies to make broader allowances for THC. When it comes to educating your clients, keep these things in mind:
· It’s not “just” a little pot. It is an impairing substance with new products behaving on par with “hard” drugs.
· Impairment can last for days rather than hours, even if use has subsided. This having been said, there is no test that proves impairment.
· Reasonable Cause training should include an understanding of contemporary marijuana products and their effects.
· Presence-in-system testing is reliable, accurate and appropriate for disciplinary actions based on safe and drug free workplace policies.
· Ignoring THC use by employees can lead to employer liability and culpability for serious injuries and high cost industrial accidents.
With the proper information, employers can avoid compromising on workplace safety and stand firm on enforcing their policies. It is CRUCIAL that we as professional collectors have the tools that our clients need to help identify and ensure that they can still have, and maintain, a safe and drug free workplace.
By Jo McGuire & Chuck Marting
Bosker, et.al. "Psychomotor Function in Chronic Daily Cannabis Smokers During Sustained Abstinence." Public Library of Science (PLoS) (2013): 8(1): e53127. Journal.
CDPHE. Marijuana 101 Good to Know Colorado. n.d. http://goodtoknowcolorado.com/before-you-use/marijuana-101. 14 February 2017.
CDPHE, Health Statistics and Evaluation Branch. Colorado Hospital Association, Emergency Dept Visit Dataset. Statistical Report. Denver: State of Colorado, 2016. RMHIDTA 2016 The Impact of Legalization in Colorado.
Zwerling, et.al. "The efficacy of preemployment drug screening for marijuana and cocaine in predicting employment outcome." Journal of the American Medical Association (November 1990): 264(20): 2639-43. Journal.