Have Things Gone to Pot at Work?
With the number of states that have legalized or decriminalized marijuana – recreational and medical, the issue of substance misuse and abuse at work has gotten much more complicated in the past few years. What does this mean for employers?:
Are employees now able to be “high” at work?
How are you to handle pre-employment drug screens that test positive for marijuana?
Do you have to accommodate marijuana usage under the ADA?
What about drug testing for suspicion?
Let’s start with some Facts:
Fact #1: Employees cannot be at work under the influence/intoxicated during work hours! That fact hasn’t changed and that’s a relief!
Fact #2: Federal law has not changed – marijuana is still classified as a Schedule I substance under the Controlled Substance Act (CSA), defined as drugs with no currently accepted medical use and a high potential for abuse. There have been numerous efforts to make the case for medical use of marijuana, but at this time, it is still an illegal Schedule I substance, under the Federal law CSA. As such, it is not an allowable accommodation under the Americans with Disability Act (ADA).
Fact #3: Federal positions and safety-sensitive positions regulated by the Department of Transportation, e.g. CDL Drivers, are still prohibited from using illicit drugs. Testing positive will result in not being hired or in being removed from the safety-sensitive function, per the company’s policy.
Fact #4: This is what has changed! State marijuana (cannabis) laws are very different! The National Conference of State Legislators has the details for the various states’ cannabis laws as of late 2018.
Source: The National Conference of State Legislators
To help confuse things, there is Hemp and Marijuana – both come from the same species of plant, Cannabis Sativa. The difference is in their chemical composition:
Hemp contains higher levels of cannabidiol (CBD), the non-psychoactive component and lower levels of delta-9-tetrahydrocannabinol (THC) – the psychoactive component (makes you “high”). Hemp is now a “controlled substance” due to the 2018 Farm Bill that legalizes industrial hemp as a crop. It allows for hemp cultivation as long as it does not contain more than 0.3% THC. The bill provides for strict regulations on the growing of hemp. Farmers are seeing this new crop as an opportunity to provide many products: paper; rope; insulation; apparel; body-care products; plastic; and for the legal manufacturing of CBD oil/Hemp extract.
Marijuana, unlike Hemp, contains a much higher amount of the cannabinoid THC and lower amounts of CBD. It is not an industrial crop and there are other strains of cannabis that produce marijuana plants. It is grown and used for recreational and medical purposes.
What’s the difference between “Recreational” and “Medical” Marijuana? – The Basics:
Recreational Marijuana – the use of marijuana to induce an altered state of consciousness for pleasure, intoxication:
“Legalized” marijuana, means an adult cannot be arrested or ticketed for the personal consumption of marijuana, as long as the appropriate state laws are being followed. The selling of marijuana, requires the appropriate license and taxation, per each state’s law. Individuals who sell marijuana without that are violating the law. As of November 2018, 10 states have legalized marijuana.
“Decriminalized” marijuana, means the penalties for the possession of small quantities and personal consumption of marijuana for adults have been reduced. It is still a criminal act, but the adult is not subject to prosecution, i.e. receive a jail sentence or criminal record. It is treated more like a speeding ticket. As of November 2018, 13 states have decriminalized marijuana.
Medical Marijuana – the use of marijuana to help address certain medical issues, as recommended by a licensed physician, per state law:
The FDA does not approve the marijuana plant as medicine. Some states do allow its use for specific health purposes.
There has been some research that suggests medical marijuana can help with inflammation, pain, muscle spasms, Crohn’s disease, glaucoma and shrink cancer cells, to name a few. More research is being conducted on these conditions and others, but it is made difficult by governmental regulations and production restrictions.
The FDA approved two drugs containing synthetic cannabinoids dronabinol and nabilone. They help with nausea and vomiting caused by cancer chemotherapy. Dronabinol also helps treat loss of appetite and weight loss in AIDS patients with extreme weight loss.
In 2018, the FDA did approve Epidiolex, a low-level CBD to help with two rare and severe forms of epilepsy.
Physicians cannot “prescribe” marijuana, they provide a written recommendation. The doctor is to be licensed in the state where that is legal and it would be for state-approved, qualified medical conditions only. Those physicians are allowed to notrecommend medical marijuana, as well. State law may require the patient to obtain a medical marijuana ID card, allowing the patient to buy medical marijuana at a “dispensary” store.
People can smoke, vape, eat marijuana or apply it as a lotion, cream, gel or liquid.
The Drug Enforcement Agency (DEA) is supporting additional research on marijuana.
Here’s what employers need to do – based upon your State’s law:
1. Check your alcohol and drug policy– does it reflect the current laws of your state? Have your legal counsel review it.
a. Clearly state that employees are prohibited from being under the influence of alcohol or illegal drugs. They are prohibited from using, consuming, selling, buying, manufacturing, etc. an illegal drug or alcohol.
b. Provide a definitions section providing clear definition around illegal drugs, misuse of legal drugs, being under the influence, on-duty, off-duty, etc.
c. State when you conduct drug testing: pre-employment, suspicion, post-accident or random. Determine if it is a requirement for promotions, if so, be clear on that expectation.
Advise what substances are tested
List the steps of the testing process
Address how a refusal to submit to a alcohol or drug test will be handled
Explain how positive and negative test results will be addressed, especially in states where medical or recreational marijuana is legal
d. Explain the employee’s responsibility in advising the company when he or she is needing to be taking a prescription that could negatively impact the ability to perform his or her job, or be a safety concern.
e. Address how the company will handle requests for accommodation regarding medical marijuana, if applicable per state law*.
f. Be clear regarding the consequences of not following the policy.
g. Address how the company will handle crimes involving alcohol or drug use “off-duty”
h. Obtain a signed acknowledgement from each employee that the employee has read and understands the drug and alcohol policy. If they have any questions they are to be informed with whom he or she should speak, e.g. supervisor, human resources, etc. State the employee is providing his or her consent to alcohol or drug testing, as per the policy.
2. Check your disability policy*- If your state allows for medical marijuana to be an accommodation under state disability law, edit your disability policy to include this in your regular process, e.g. your interactive dialogue.
How do you help your employees who may be dealing with substance misuse or abuse?
Check with your benefit providers – find out what services they offer to help with substance misuse or abuse.
Post information at work providing information on where they can get assistance with substance misuse or abuse:
What your benefit providers offer
Your Employee Assistance Program (EAP) services
U.S. Department of Health and Human Services treatment facility locator for confidential and anonymous information
If you notice changes in your employees – reach out to them to see how they are doing. Let them know you care about them and let them know about the various programs available to them, e.g. the EAP, etc.
When to test for alcohol or drugs?
As a business owner, you are responsible for providing your employees a safe workplace. Having an employee who is suspected of being under the influence of alcohol or illegal drugs puts themselves and others at risk.
A couple of things to be aware of regarding alcohol and drug testing:
You can easily test for the presence of alcohol – if it exists, it is a violation of your Alcohol and Drug policy and you follow the policy
You can easily test for the presence of illegal drugs – if it exists, it is a violation of your Alcohol and Drug policy and you follow the policy
You can easily test for the presence of marijuana – if it exists, it does not necessarily mean the employee is under the influence, as marijuana can stay in a person’s system for an extended period of time. You have to ensure you’re following your state’s law which should be reflected in your Alcohol and Drug policy, to determine if there has been a violation.
If the employee is misusing a legal drug for which they have a prescription, it is difficult to determine “impairment”. You may be able to show the drug is in the employee’s system, but it does not necessarily mean they are under the influence of the drug, e.g. a urine test. However, if they do not have a prescription for the legal drug, then it would be a violation of your Alcohol and Drug policy.
If you have tried to help your employee before it got to this level of problem, testing may be the thing that brings the employee to the point where he or she realizes the situation is out of control and he or she needs help. In the case of the legal drug matter, you should discuss the situation with your human resources professional on the best course of actions to take.
Regardless of any law change – you still hold your employees accountable for their work behavior and job performance, including the essential functions of their jobs, with or without accommodation.
If you would like help with this, any other employee relations issue or other HR Headache, contact me and I will be happy to be of assistance.