Marijuana and Work Don't Mix

“When you smoke marijuana, you are in the moment and you are happy.  You forget about any worries of the past or the future” – Tommy Chong

Legalization of marijuana, whether for medical or recreational use, is rolling out across the country.  As marijuana becomes legal in more states, employers must implement and enforce firm policies on how marijuana use will be tolerated. Last year Michigan became the 10^th state to legalize marijuana for adults 21 and older. This leaves employers faced with the dilemma, do they continue to test employees for THC (the chemical responsible for marijuana’s psychological effects), and maintain a zero-tolerance drug policy?

How Does Marijuana Use Impact Job Safety?

Employers located in states where marijuana is legal should examine how changing laws may affect their drug-free workplace programs. Re-evaluating policies and procedures that involve drug testing and recognizing the potential for legal marijuana use by employees are among the challenges. While zero-tolerance policies for workers in safety-sensitive roles may be appropriate, they may pose problems in other settings, given the more complex legal environment. Navigating compliance with conflicting state and federal laws and regulations is another challenge, especially for employers operating in multiple states.

THC in marijuana affects depth perception, reaction time, difficulty with thinking and problem solving, coordination and other motor skills. It creates sensory distortion, which can have a deadly effect on an employee operating machinery or operating a vehicle.

Studies show that drug testing DOES work! Employees are three times less likely to produce a positive result if they know they will be tested. This demonstrates that drug testing may actually act as a deterrent. Employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries and 75% greater absenteeism compared to employees who tested negative.  Also impacting a business’s bottom line are:

• Decreased productivity
• Increased workers compensation and unemployment compensation claims which could impact your experience mod and the premiums you pay
• Higher turnover

Providing a Safe Workplace

Marijuana remains illegal according to federal law. Federal law supersedes state law, which causes difficulty for employers to create blanket zero-tolerance drug policies. Selective Insurance provides the following best practices to help ensure a safe workplace for employees that include:

• Understanding the laws and precedents set by all of the states in which a company conducts business, to help establish legal methods for hiring practices
• If an employee has informed their employer they have been prescribed medical marijuana, identify the job that employee does and consider how to keep all employees safe, including the prescribed employee.
• Create a plan to effectively deal with workplace impairment that includes:
  • Meeting with the employee
  • Providing safe transportation if the employee appears impaired
  • Arranging for testing
  • Responding appropriately to test results
• Implement an ongoing drug testing program. The program should be designed, in compliance with state and federal laws, to ensure it meets all requirements and does not violate any rules or regulations within the state you operate in.

Michigan Employer Rights after the Passing of Proposal 1 to Legalize Marijuana

• The Act does not require an employer to permit or accommodate marijuana in the

workplace.

• The Act does not prohibit an employer from disciplining or discharging an employee

for violating a workplace drug policy.

• The Act does not prohibit an employer from taking adverse employment action

against the employee because they were working while under the influence of marijuana.

• The Act does not permit a person to consume or smoke marijuana where prohibited

by the owner, occupier or manager of property.

• The Act does not change federal regulations, such as DOT regulations for CDL holders.

The passage of Proposal 1 has caused much confusion for both employers and employees, therefore we recommend you take the following steps:

Evaluate

1. Review your current written policies, including your workplace drug policy:
   1. Consider revising policies that refer to “illegal drugs” or “illegal substances” and removing the word “illegal.”
2. Establish what your (the employer) stance is for being “impaired”:
   1. If you maintain a “zero tolerance” policy then you should determine what your disciplinary measures are for being impaired while on the clock and /or upon positive results of a THC test.
3. Establish at what point in time you (the employer) will conduct testing:
   1. Pre-employment
   2. Post Injury
   3. Reasonable Suspicion
   4. Random
4. Testing Method:
   1. Unlike alcohol testing, a positive result does not reveal when marijuana was consumed or whether an employee is under the influence.
   2. Currently there is no accurate, on-demand impairment test for THC, saliva swabs and urine samples only show if THC has been used over the last few days.  Tests of hair samples will show THC levels going back as far as 90 days.
5. Penalty for Positive Test Result:
   1. Determine what your disciplinary actions will be.

Before implementing or making changes to an existing drug and alcohol workplace policy, we recommend seeking input from key stakeholders in your organization, including but not limited to human resources, labor relations, safety management, and legal counsel.

Communicate

A drug policy must be very specific and communicated to all employees so they are aware of the consequences in the event of a positive testing.

1. Publish or Republish your written Substance Abuse Policy/Workplace Drug Policy to the entire organization.
2. Conduct a “retraining” of your supervisors and employees regarding the policy.

Other points to consider include:

• Workplace Safety – It is reasonable to expect employees not to be impaired while performing employment-related duties. This is especially true for employees in safety-sensitive roles such as equipment operators and those working around machinery or in hazardous situations.
• Federal Rules – Federal contractors and federally-regulated industries should comply with federal drug-free workplace rules.
• Program Design – a formal, written program that clearly communicates your policies and procedures that is consistently enforced can be especially helpful in a complex legal environment. Conduct employee and supervisor training to ensure everyone is informed.  Keep records of training provided.
• Stay Informed – Keep pace with changing rules and make adjustments to your drug-free workplace program as needed.

Communication is key.  Employees need to be aware what is expected of them and how an impairment will be treated BEFORE they show up to work under the influence.  The bottom line is you must protect your business and provide your employees a safe environment in which to work.  Marijuana is a new reality that needs to be addressed.  It is crucial to make sure that hiring and employment practices, including pre-employment drug testing and post-accident drug testing, are effective as well as in compliance with all state and federal laws.