The Muddy Waters of Marijuana and Workplace Safety

Here’s what Fortune 500 companies are doing to get out in front of the marijuana challenge.

As you hear in the news almost weekly, the use of marijuana is no longer taboo.
There are many claims about the medical uses of marijuana. Such as treating seizures, glaucoma, PTSD, pain management, and even that it can cure cancer.
As a result, many states (more than half) have started to allow the use of marijuana for medicinal purposes. Some states are very strict in their control of medicinal marijuana. Some states are very loose with how they control marijuana. And as of this writing, 8 states (and 1 district) have legalized marijuana for recreational use.
But marijuana intoxication poses a threat to any workplace safety culture. Not to mention that marijuana is still illegal at the federal level.
Any occupation defined as “safety sensitive” by the Department of Transportation (DOT) is very clear cut. You will take a drug test that includes marijuana. Failing that test can prevent you from performing your job function. End of story.
But, DOT defined safety sensitive positions only apply to employees who pose a significant risk to PUBLIC safety. There are still many “safety sensitive” employees that aren’t defined by the DOT… Those who pose major safety risks and should NOT be consuming marijuana. These include oilfield workers, electricians, linemen, heavy equipment operators, fork lift drivers, medical staff, etc.
And this is where marijuana use gets complicated.

Until recently, employers held the upper hand in court…

marijuana court rulings workplace safetyEmployers have generally had solid legal footing when they clearly communicated their wish to drug test their employees and punish and/or terminate employees who tested positive for marijuana… even if they were issued a medical marijuana card.

Employers traditionally used the fact that marijuana is still a schedule 1 drug and still federally illegal, so they have a right to ban the substance from their workforce. This strategy has stood the test of time for the past 15 plus years…until now.

Over the summer, Massachusetts, Connecticut and Rhode Island had cases where the courts ruled in favor of the employee. In these cases, the employees were either terminated due to a positive drug test or had a job offer rescinded due to a positive drug test.

The employees claimed that the Americans with Disabilities Act allowed them to ask for “reasonable accommodations” for medical conditions. In each case, the employees asked for these accommodations, but were denied. They also claimed they never used marijuana while at work.

In all cases, the employee claimed their jobs were not deemed safety sensitive.

With this shift in recent court rulings, now is the time to think about your tolerance level for medical marijuana.

Here’s what fortune 500 companies are doing to get out in front of the issue

marijuana workplace safetyFortunately for us, we happened to be going to the annual SAPAA conference (Substance Abuse Professional Administrators Association), an annual conference that often attracts drug and alcohol testing program directors from large companies from across the US.

We invited 7 of these program directors to sit in a conference room with us to discuss the issue of marijuana in the workplace and the recent court rulings to find out what they were doing to be proactive.

In attendance, we had representatives from Halliburton, Boeing, Honeywell, Alaska Airlines, Wanzek Construction, and Chevron, six of which are Fortune 500 companies. We all sat together for a couple of hours to share our war stories and discuss the challenges of marijuana legalization and how that can conflict with workplace safety.

All the representatives from these companies agreed that they would prefer a full ban on marijuana in their workforces to continue growing their safety cultures. They also agreed that the recent court rulings were cause for concern in how they are currently managing their marijuana prohibition.

After weighing all options, including eliminating marijuana from the drug testing panel (which I would not recommend in safety sensitive workforces), this is what we came up with:

It’s time to become proactive in your non-DOT workplace programs

marijuana and workplace safety

The best proactive solution to this challenge would be to add to each of your job descriptions a tag of “safety sensitive” or “non-safety sensitive”. Most companies will have positions within the company that pose a greater safety risk than others, so if you categorize them yourself before you have a medical marijuana case on your hands, you get to keep the reins on what is and is not safety sensitive.

In the court cases discussed above, the employees tagged themselves as non-safety sensitive. You need to be out ahead of that and make the determination yourself.

If you pre-define your job descriptions in this manner and you have a prospect apply for a job within your organization and they tell you that they have a medical card, you can confidently give them an answer as to if you are able to make the “reasonable accommodation” for the position they are being hired for.

If their job is deemed safety sensitive, you can then let them know that the position they are applying for is not able to accept medical marijuana cards, but other positions may be. To me, that is a “reasonable accommodation”.

But what is the real solution to the problem?

marijuana and workplace safetyThe real “silver bullet” for this problem will be impairment testing for marijuana similar to how we test for alcohol impairment in the workforce.

The major problem with impairment testing at this point is deciding on what marijuana impairment is. For alcohol, the NTHSB (National Traffic and Highway Safety Bureau) established these levels for alcohol and would likely be the government entity to establish impairment for THC (the active ingredient in marijuana) too.

I spoke with an agent from the NTHSB… unfortunately, since they are a federal agency, they are not working on this since marijuana is still federally illegal. He said that when they did begin to create these baselines, it would take years to establish the proper levels because THC acts very differently in the body than alcohol.

Alcohol requires a relatively large consumption amount (comparatively) and the half-life of alcohol is very short compared to THC (Scientifically speaking).

Based on that conversation, we can expect an EXTENDED wait before we get that much-needed silver bullet.

In the meantime, I would recommend taking a cue from our 7 corporate representatives and be proactive by tagging each and every position as “safety sensitive” or “not safety sensitive” before your employees do it for you.As you hear in the news almost weekly, the use of marijuana is no longer taboo.

Click here to see how Lobdock can help you save money and headaches with proper implementation of drug testing policies that are smart, efficient, and effective. Or call us at 1-855-753-7843!

About the Author Susan Lobsinger

Susan is founder and President of Lobdock Impairment Detection, a full-service, mobile drug testing and contractor compliance management provider. Lobdock provides safety managers with the objective data they need to make safety decisions that make a difference in the lives, safety, and health of their employees who work in safety sensitive positions.

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