Maintaining Drug Free Workplaces Where Marijuana Is Legal

With half of U.S. states allowing some form of marijuana use, the workplace has become a hotbed of controversy when it comes to changing workplace drug policies.

Many employers are under pressure from employees to loosen those policies, making allowances for marijuana as a social drug, often compared to alcohol. There are similarities in that you would not allow an employee to be intoxicated at work, likewise you would not allow an employee to be impaired at work while under-the-influence of marijuana. The substances however are quite different when it comes to determining whether an employee is currently under-the-influence of marijuana or has residual THC that has metabolized.

While the majority of companies, particularly those who have safety-sensitive employees, choose to maintain a zero-tolerance policy, there are plenty of employers asking how to create some form of tolerance.

There are multi-faceted issues in a culture of acceptance and each particular issue must be carefully reviewed with safety at the core of the conversation. Understanding that contemporary marijuana products (whether leaf-based, edibles, oils, or extracts) contain substantially greater amounts of impairing THC than the traditional marijuana of the past, longer lasting side-effects and sub-acute impairment are new concerns that employers must take into consideration. In fact, extremely potent products are so new in the marketplace that most employers are quite unaware of their existence at all.

For example, a popular product known as “dabs” (a butane hash oil extraction) can contain as much as 97% THC[1]. Those who market this product claim that one puff is equal to 26 hits of a regular marijuana cigarette. Impairment is immediate and powerful.

With that in mind and keeping employee, workplace and community safety as the ultimate goal, what options might be available?

The first question is: who may and may not be permitted to have THC present in their system based on a particular job description in your workplace?  Is the individual at any risk to themselves or others if they are under-the-influence? Is there any liability for you, as the employer?  Are there any situations you can foresee that would put the company in a position of culpability for allowing the employee to work with THC in their system?  Think about machinery, driving any type of company vehicle (to include forklift operations), exposure to chemicals, heat sources, etc.

Once an employer has established if there is a subset of their workers that can risk impairment, the next question is: how much marijuana (or THC) should be allowable?

This is an extremely difficult question and is asked of the drug testing industry regularly. The trouble here is two-fold: 1. Marijuana use quite literally affects every individual in radically different ways. 2. The amount of THC in someone’s system has no direct correlation related to any level of impairment.

The topic of “how much is o.k.” is really a huge unknown and not even experienced toxicologists can recommend an “acceptable” level of THC.  There are reasons why no impairment standards exist for marijuana that boil down to one very complicated and yet simple statement: the science isn’t there yet and it won’t likely be anytime soon[2].

The bottom line here is employers who chose to allow “some” marijuana to be present are making an abstract choice based on their own guesswork without any scientific meaning behind it.

It is important to note that in states like Colorado where the inferred DUI level has been set at 5ng, the measurement of active THC in whole blood and in no way relates similarly to urine.  Therefore, no direct comparison can be made that can help create a workplace determination of allowable THC.

Here we seem to have arrived at a crossroads of zero-tolerance versus absolute guesswork in what should and should not be allowed. And if allowances are made, the employer could be ultimately responsible for resulting outcomes.  But are these two options the only choices?

There are entire sectors of the workforce that tolerate employee marijuana use, some going so far as to remove THC from the drug screen panel altogether, fearing that without doing so they will have no applicant pool from which to hire new employees. It is interesting that employers would not typically consider allowing an alcohol impaired employee to perform work duties, but are taking a hands-off approach with marijuana. It is likely because of the political atmosphere surrounding marijuana but this hot button issues should not interfere with a culture of workplace safety.

However, there are some creative ways a more accepting outlook can be approached that still maintain workplace boundaries, keep safety a priority and help potential and current employees understand the need for sober working environments.

For instance, the qualifying applicant with a positive pre-employment THC drug screen could be asked to re-test in thirty days before receiving a start-date for work. Precautions should always be taken to ensure applicants do not attempt to cheat their drug screen so the employer is certain that “what you see is what you get.”

Additionally, employees should expect to be in a quarterly pool for random drug screens. This protocol sends a clear and consistent message that safety is expected. Zero-tolerance is the best-practice policy but immediate termination does not necessarily have to be the only response.

Should an employee test positive in a random draw, maybe a thirty day suspension (with pay at the employer’s discretion) is appropriate. The employee may be permitted to return to work when a clean drug test is provided (again, be alert for cheat attempts). This would potentially prevent the cost of finding new hires and cut down on training expenses. While there would still be a thirty day gap, the suspension method would allow an employer to keep a valuable employee who can learn to abide by appropriate workplace expectations. This scenario should have a limit on the number of suspensions allowed before an employee is terminated. In the case of termination, there could be a one year waiting period before an employee is eligible to re-apply.

Another avenue to pursue is the use of oral fluid testing which can detect the recent use of marijuana. This would eliminate the trouble with long-term residual, metabolized THC and allow an employer the option to stand-down or re-assign the individual with a positive oral fluid result until a follow-up test is clean.

Considering alternative options such as these can aid employers in educating their employees about the value of respecting boundaries that serve public health and safety while still allowing individuals the opportunity to seek viable employment options as they mature in their personal decision-making.  Education is the most valuable tool at your disposal, as you help personnel understand the value of safety first.

While not all adults who use or misuse drugs or alcohol can be classified as “addicts”, statistically one in ten adults who use substances on a regular basis do have an addiction problem and 55.7% of adults who self-report a drug-dependence problem are employed full-time.[3] It is especially important to note that full-time employment can be a major benefit that helps a recovering addict succeed in overcoming substance abuse when the employer engages as a link in the support system and not as an enabler. There is interesting data and information about how to be a positive part of the solution at: http://www.samhsa.gov/recovery

In any scenario pertaining to drug or alcohol use it is vital to treat all employees equally and fairly, giving each the same opportunity as others. If the choice is made to alter a workplace drug and alcohol policy, make the choice with a full knowledge of the risks involved and review the options with a few final considerations:

·      If your company chooses to create an atmosphere of acceptance of any drug (whether medical or non-medical) for recreational use, does this open up a can of worms for allowing all drugs to be used recreationally by your employees?  What are the implications of doing so, where will the boundaries lie and how will you defend your open policy as more progressive attitudes toward recreational drugs ensue?

·      Marijuana remains a federal Schedule 1 substance because it still meets all of the criteria to be classified as such. If your workplace receives federal dollars, you may not have any options but to remain at zero-tolerance status.

·      While the concept of marijuana legalization is trending as one philosophical option for how to deal with America’s drug problem, many do not consider it the most viable solution and specific outcomes in this modern experiment are largely unknown. Workplace impact is particularly important but it will take years to gather data and understand the full array of consequences. Using common sense logic and an approach that prioritizes workplace health and safety must beg the question: just because they can … does it necessarily mean they should?

[1] http://www.openvape.com/blog/post/fact-friday-oil-wax-shatter-and-dabs

[2] http://knowledgecenter.csg.org/kc/system/files/CR_drug_dui.pdf

[3] SAMHSA 2013 National Survey on Drug Use and Health