Employers are struggling to deal with the widening uncertainty with regard to what marijuana legalization means for workplace safety policies and employee wellness. Employers want to maintain a safe workplace, stay within the law, AND yet remain competitive in their hiring and employee retention practices.
The problem is complicated by three key issues. Employers, however, can address them by adopting an impairment assessment solution as put forth by the National Safety Council.
Laws concerning marijuana vary from state to state
The Drug Free Workplace Act of 1988 typically forms a company’s basis for its drug and alcohol policy. This federal regulation states that employers must maintain a drug-free workplace in order to obtain federal grants. While the regulation does not apply to companies that are not working for the federal government, it has nevertheless become a general guiding factor for most business. Under federal law marijuana currently remains an illegal substance. The discrepancy between federal law outlawing marijuana and various state laws legalizing it adds an additional level of complexity for employers.
Employers need to stay up to date with any and all new legal regulations in any state in which their employees work. Old employer drug policies are likely no longer to be legal. Employers in states that have not legalized marijuana for medicinal or recreation purposes will, of course, need to keep the federal policies in place and follow their state’s laws.
Some state laws may prohibit pre-employment or employee testing for marijuana
The drug policies of many companies start at the pre-employment screening stage. Those companies will frequently not make an employment offer final or will rescind an offer if an employee candidate tests positive for an illegal substance. Employers operating under certain federal regulations, such as those from the DOT, would test and eliminate potential employees for marijuana use even in states that have legalized marijuana. Employers not under such strict federal regulations have decisions to make based on the rules in the states where they operate. Some states have banned pre-employment marijuana testing. Others may allow it but have prohibited companies from making certain employment decisions in connection with a positive test.
Given current labor shortages, employers are at a distinct disadvantage if they test for pre-employment marijuana use, as potential employees who use marijuana, knowing this, will simply go to another company that does not do such pre-employment testing.
Testing positive for marijuana does not necessarily indicate impairment
On-the-job testing where a company randomly tests for drugs or tests post-incident can get complicated quickly. Testing for marijuana in a state where marijuana is legal could violate employee rights and taking disciplinary action against someone testing positive for marijuana may be prohibited. Because marijuana impairs for only 1-2 hours after consumption, yet typically remains present in the body for up to 3 weeks, or longer for frequent users, drug testing for marijuana almost never tells you if the person is impaired. If the goal of drug testing is to create a safe workplace, then drug testing for marijuana fails accomplish that goal.
So what’s an employer to do?
Adopt an impairment assessment solution
Addressing the safety of employees and the liability of employers is better accommodated by adopting a broader definition of impairment. While impairment has been a workplace safety issue for decades, the pandemic has created a new era of workplace safety with increased substance use, increased mental health concerns including depression and anxiety, and impairment due to fatigue. The National Safety Council (NSC) has defined impairment as the inability to function normally or safely as a result of a number of factors – from chemical substances (e.g., alcohol, opioids, cannabis), physical factors (e.g., fatigue and certain medical conditions), social factors (e.g., professional and other stressors) and mental distress (e.g., related illness and other factors).
Rather than drug testing, Impairment testing tells you something that drug testing for marijuana cannot: whether, in real time, an employee is fit for duty. And because impairment testing does not test for the presence of bodily substances, it can only tell you whether someone is cognitive impaired. It does not tell you whether someone is impaired due to any particular cause, including from marijuana. Impairment testing does not violate any state or federal laws or an employee’s rights to use marijuana if the state has consented to such.
Employers looking to navigate the complexities of marijuana legalization should seriously consider impairment testing as a part of the solution. Impairment tests are an objective, scientific method to determine if someone is fit for duty.