Six steps employers can take to navigate confusing laws
For employers operating in states that now permit cannabis use, whether for medicinal or recreational purposes, navigating this new legal landscape can be a considerable challenge.
“It can be a confusing and a potential minefield for employers”, says Maryland attorney Don Rea. “It’s important to know the exact statutes of the state or states that you are operating in or you can get into trouble.” Rea recently spoke to a group of safety professionals in the mid-Atlantic region on how to adjust to the growing presence of legal marijuana use.
As medical and recreational marijuana use becomes more common and protected by state legislation, companies may find existing zero-tolerance policies and current testing strategies to be too restrictive for effective use. In some cases, such zero-tolerance policies could be infringing on the rights of employees. However, with careful monitoring of state laws, clear company policies, and consistent testing programs, employers can balance their duty to keep the workplace safe while recognizing workers’ rights.
1. Maintain a Safe Workplace and Jobsite
Since passage of the Occupational Safety and Health Act of 1970 (OSHA), all employers are required to provide and maintain a safe jobsite and work environment “free from recognized hazards that are likely to cause death or serious physical harm.” The worksites of many industries pose a number of potential personal injury hazards and risks, including those associated with transportation, working at height, or with heavy machinery. Historically, companies have mitigated these hazards by implementing strict zero-tolerance policies for intoxicants like alcohol and cannabis. However, as more and more states legalize cannabis for medical and recreational use, such zero-tolerance policies become increasingly difficult to maintain. Furthermore, these zero-tolerance policies can violate the rights of employees and, in some cases, open up employers to potential legal action.
2. Study State Statutes on Cannabis Use
The current legal status of cannabis can be confusing and can compromise and employer’s duty to maintain a safe jobsite. Cannabis remains illegal on a federal level, but has been legalized for medical use in forty-six out of fifty states (including CBD oil with THC). Only Idaho, Wyoming, Kansas, and South Carolina fully forbid any type of cannabis use and where it’s use or possession remains a criminal offense.
In twenty-four states, however, employers are forbidden from discriminating against any potential or current employees because of their medical patient status.
Even companies with federal contracts are not necessarily exempt from such prohibition. Federal courts in both Massachusetts and Connecticut held that a federal contractor could not enforce its zero-tolerance drug policy against an employee with a medical marijuana prescription. Furthermore, a number of states have passed legislation stating that a cannabis-positive test alone cannot demonstrate impairment, a decision that has been upheld by Oklahoma courts. Employers should be aware of the precedents set by court cases on this subject:
Connecticut - In Noffsinger v. SSC Niantic Operating Co., LLC, a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user.
Arizona - A Federal Court in Arizona agreed with the Connecticut court’s similar reasoning in Whitmire v. Wal-Mart Stores, Inc.
Oklahoma - Similarly, Oklahoma law prohibits contractors from discriminating or punishing an employee based on the employee’s status as a medical marijuana card holder or a positive drug test for marijuana or its components unless the employer would lose a benefit under federal law or regulations.
Illinois - In this state, contractors are prohibited from discriminating against any employee or job applicant who qualifies as a medical marijuana patient unless the accommodation would result in the violation of a federal law or the loss of a federal benefit. Nonetheless, Illinois contractors may still impose reasonable limitations on the consumption of medical marijuana and enforce zero-tolerance and drug-free workplace policies as long as the policies are applied in a non-discriminatory manner.
·Other states, such as Delaware, Nevada, New York, and West Virginia, have similarly varied degrees of required accommodation.
3. Develop a Well-Defined Drug Policy
According to legal experts, developing a well-defined company policy on cannabis use will both minimize the risk of harm to people and property, and decrease the likelihood that cannabis-related drug testing and disciplinary action will open the company up to potential legal liability. It is recommended that employers ensure that their company drug policy does the following:
Defines the terms “marijuana,” “cannabis,” or any other derivation of the drug. Simply prohibiting the use of “illegal drugs” can create ambiguity because of marijuana’s legal status in various jurisdictions.
Indicates that the use of cannabis on the job is strictly prohibited.
Articulates drug-testing policies and procedures (including penalties for failing a drug test).
Educates employees on clinical issues relating to cannabis, such as its effects on the body, the length of time it can impair cognitive and physiological functions, and the potential impact on workplace safety and performance.
Includes the company drug policy in recruiting and new-hire onboarding materials to ensure notice to the individual.
4. Be Consistent with Administering Drug Testing
It is critical that drug tests are conducted uniformly for all employees. Failure to do so can subject a employer to liability for discrimination. If an employee tests positive for cannabis, the recourse available to an employer can vary greatly under federal and state laws. For example, under the Americans with Disabilities Act (ADA) employers can terminate an employee who tests positive for cannabis, even if that employee is disabled, prescribed medical marijuana, and only uses marijuana on his or her own time – unless an employee discloses a disability and requests an accommodation to a non-safety sensitive job.
Given this “legal minefield” of cannabis legalization across states and cities, employers need to make state-specific adjustments to their employment policies and practices. In all cases, employers should consult with legal experts and addiction experts to ensure that their drug policy is effective and enforceable.
5. Understand the reality of Cannabis Impairment
Given THC’s slow (3 weeks or more) elimination from body tissue after consumption, employers are more likely to encounter positive cannabis tests in their employees than from other drugs that are eliminated from the body much faster. In states that allow legal cannabis use, given its unsettled legal status in the workplace, employers who use positive cannabis test results to discipline employees or determine their fitness for work now do so at some risk to their company.
A 2020 study by Bernerth and Walker found that cannabis use before or during work hours resulted in significant decreases in safety and work performance compared to after-hours cannabis use. If employers cannot legally enforce a zero-tolerance cannabis policy in their workplace and traditional drug tests cannot effectively differentiate between safe and unsafe cannabis use, then employers are left with little to no ability to spot and prevent unsafe working behavior. In order to preserve a safe workplace without violating the rights of their workers, employers must craft and implement well-defined drug use policies that rely less on drug detection and more on impairment detection.
6. Screen for Impairment
In recent years, a number of states where cannabis is legal are guiding employers to screen for impairment and have provided guidance on how to detect and report impairment. New Jersey legislation states that a positive drug test cannot be used to prove impairment. They are one of the first states to formally outline what impairment-based drug policies might look like in the workplace. The NJ Cannabis Regulatory Commission provides a guidance document and suggests employers hire or designate an official “impairment detection expert” to handle both detection and documentation within the workplace.
That guidance includes the option to utilize an automated, scientifically-valid cognitive impairment test, supported by observation. The Druid Fit-for-Duty impairment test from Impairment Science, Inc. fulfills this option and allows employers to objectively investigate and document impairment, thus making it easier for employers to take disciplinary action without violating the rights of workers.
The growing number of states legalizing cannabis, both medically and recreationally, and the nuanced differences and conflicts between laws, are creating a challenge for employers to fulfill their OSHA General Duty clause. “Employers should take a close look at the New Jersey guidance if their state presents similarities”, advises attorney Don Rey. “Companies need to implement well-defined policies and procedures, and pay particular attention when operating in any of the states in which marijuana is now legal.”
Employers will benefit by taking time to review current policies and evaluating current practices to ensure employee safety, reduce company risk, and increase company productivity.