Two occupational safety and health organizations have issued comprehensive guidelines for companies to navigate the changing environment regarding marijuana in this country and still keep their employees safe.
With half of states legalizing medical marijuana and a handful OKing recreational use, companies have been left asking, How does this impact our drug policy and workplace safety?
The American Association of Occupational Health Nurses and the American College of Occupational Environmental Medicine formed a panel to develop guidelines for companies regarding workplace safety and marijuana impairment.
The panel has published a paper in the April 2015 issue of the Journal of Occupational and Environmental Medicine summarizing its recommendations.
The paper points out that the duty employers have to keep workers safe on the job under OSHA’s General Duty Clause may make it necessary to exclude people under the influence of marijuana from certain tasks or from the workplace altogether.
Also, employers who fire or refuse to hire employees because of marijuana use aren’t in violation of the Americans with Disabilities Act (ADA).
However, the ADA does put restrictions on drug testing. Drug tests must be job-related and necessary for business.
When federal regs apply
Two federal regulations place requirements on employers regarding employees and marijuana.
Under U.S. Department of Transportation (DOT) regulations, marijuana use remains unacceptable for any safety-sensitive employee subject to drug testing, including:
- bus and truck drivers
- locomotive engineers
- subway operators
- aircraft maintenance personnel
- transit fire-armed security personnel, and
- ship captains.
The Drug-Free Workplace Act requires companies that receive a federal contract of more than $100,000 or a federal grant of any size to maintain a drug-free workplace. The DFWA doesn’t require drug testing, but it does require employers to:
- publish and distribute a policy
- specify actions that will be taken against employees who violate the policy, and
- provide education in the workplace about the dangers of drug use.
Impact of state laws
But besides these federal requirements, how do state laws regarding marijuana impact employers?
Most states that have legalized medical marijuana don’t provide protections for employee use. The exceptions are in:
- Michigan, and
- Rhode Island.
The states with approved recreational marijuana use don’t provide protections for employees who use it.
With more people able to legally use marijuana under state laws, another sticky area has been determining what constitutes impairment.
The joint panel is proposing that a serum level of 5 ng/mL (nanograms per milliliter) of THC (the primary psychoactive substance in marijuana) plus THC-OH (the main active metabolite of THC which is formed in the body after cannabis consumption) be used to determine impairment.
But serum level alone isn’t enough to show impairment. Signs of impairment that have been documented by a supervisor or medical personnel should also be used.
What if, because of state law, employers decide they have to accommodate medical or recreational use of marijuana by employees?
The panel recommends that companies follow these guidelines:
- A medical review officer (MRO) should be included (along with legal counsel and a safety professional) in discussions involving individual use of marijuana
- Specific guidelines regarding testing for both post-accident and possible impairment should be developed and explained to employees
- Blood tests are recommended over urine tests
- Employees should know the ramifications of a positive test
- Medical evaluations should include documentation of state registration for medical marijuana, schedule of use compared to work hours, cannabis form (smoked, edible) used, need for accommodations and anticipated duration of use, and
- The company should assess the risk based on the safety-sensitive nature of the job.
Putting it all together
Ultimately, when it comes to developing a drug policy that takes into consideration the changing laws regarding marijuana use, the panel recommends:
- For employees covered by federal regs (DOT, under federal contract), marijuana use is prohibited. In these cases, urine drug screening can be used.
- Employees in safety-sensitive positions must not be impaired at work.
- Employers in or near states that allow recreational marijuana use must establish a policy regarding off-work use.
- To detect impairment, a limit of 5 ng/mL of THC measured in serum or plasma is recommended.
- A medical exam to detect impairment is always recommended.
- Companies should stay aware of changing marijuana laws because, although it appears most states allow companies to continue their drug policies, this could change.
- Employers should have clear policies and procedures for supervisors to follow regarding impairment detection.
- Employee education about drug use needs to be conducted at hire and again at regular intervals.
- Supervisors need to be trained on how to recognize behaviors indicative of impairment.
- In states where marijuana use is permitted, employers should provide educational materials on the detrimental effects of use.
What has your company done regarding employee drug use in the wake of changing state marijuana laws? Let us know in the comments below.