Workplace Drug Testing in the Era of Legal Marijuana – Highlights

In March 2015, Robert L. Dupont MD of The Institue of Behavioral Health published an excellent report that all employers managing drug free workplace programs should review. The purpose of the report is to help provide some guidance to employers in an era  of chaning public opinion and fast changing states laws. 

However, if you have a short attention span like we do, it’s nice to have the Cliff’s notes version around. Here’s some of the take aways from that report.

The Challenge

As of May 2015, 23 states have passed medical marijuana laws and 4 states have approved it for use recreationally. This has caused confusion amongst employers, applicants and employees. 

• Each state has drafted their own laws which may achieve similar results but have important nuanced differences.
• Drug testing in the U.S. is generally categorized as “Federal” and “non-federal’ testing – with federal testing having different requirements. For example, federal testing mandates testing for marijuana where drug free workplace programs could (at risk) exclude marijuana from their testing.
• Media regularly publishes pro-legalization drug testing related articles without providing adequate or sometimes no counterpoint comments from important organizations such as the Drug and Alcohol Testing Industry Assoc (DATIA) or American Medical Association (AMA), National Institute of Health (NIH), Department of Transportation (DOT) and other agencies.

 The Threat

Legalizing marijuana for medical or recreational purposes does not eliminate the risks it presents to safety or to a company’s bottom line. 

• Marijuana is a psychoactive drug / mild hallucinogen
• Marijuana is addictive to about 9% of users
• Marijuana may increase a users vunderability to stroke
• Even when “smoked marijuana” is provided for medical purposes is not provided using standard “dosage” standards like it is when provided as Marinol®
• Short-term effects of marijuana use include impaired short-term memory, impaired motor coordination, altered judgment and, in high doses, paranoia and psychosis
• There is a strong association between marijuana use and diminished lifetime achievement; motor vehicle crashes; and symptoms of chronic bronchitis

Further legalization of marijuana for medical and recreational use normalizes the use of marijuana implying to many people that its use is safe.

 The Impact of State Based Marijuana on Workplace Drug Testing

Washington DC and 23 other states have approved marijuana for medical use despite it not having been through clinical research  trials, having FDA approval or even being removed form Schedule I status. Regardless it is now seen by the public as medicine. Four states have legalized it for recreational use – directly conflicting with federal law. Some employers are now opting to remove marijuana from their testing program or are treating it as a substance with legitimate medical explaination meaning a laboratory positive could be overturned by a medical review officer if a doctor patient relationship can be verified.

• Quest Diagnostics annual Drug Testing Index Report shows that marijuana positives increased by 6.2% and raised again in 2014.

The marijuana positivity rates increased 20 percent in Colorado and 23 percent in Washington. Given the upward trend in marijuana use nationally and the changing state-based laws with regard to marijuana, employers must address marijuana use in the workplace and not fall prey to the misinformation surrounding this threat to employee health and safety.

For federal drug testing programs there simply is no change. Persons testing positive for marijuana are removed from performing safety sensitive duties, may be forced to change positions, are required to engage with an substance abuse professional, have to pass a return-to-duty test and may be terminated. There is no scenario where a medical review officer would overturn a marijuana positive test even if the person had reveived a medical marijuana referral and have done so in adherance with thier local state laws.

 Advice to Employers

• Look at the big picture: Marijuana represents a threat to safety in the workplace and to your employees health and well being. Opiate-based drugs are prescribed legally and under dosage but still represent a huge risk as does alcohol.
• Understand the legal complications: Many states have specifically addressed marijuana in their medical marijuana laws requiring an employer to show impairment before taking action against an applicant or employee who tests positive for marijuana. These provisions should be accounted for in your drug free workplace policy.
• Consider a per se or “Zero tolerance” policy: A zero tolerance policy can help employers avoind having to prove impairment which is where state laws can get super complicated – particularly for organizations operating in multiple states. A zero tolerance policy a strict standard of no use, period. A compoany following a zero tolerance policy would essentially be following the standard set by the federal goverment for their own regulated testing programs (DOT, Nuclear Regulatory Commission, Dept. of Defense).
• Avoid Politically Derived Psuedoscience: In order to pass legislation, proponents of marijuana had to address the issue of driving under influence. In Washington State, they came up with an arbitrary 5ng/ml blood THC level limit to prove impairment. The problem is that THC can be consumed in a variety of ways (eating, smoking, “dabbing”/ inhailed) and enter the bloodstream at different rates over time, thus a one-off blood test does little to provide a true mesaure of impairment. According to the report “It is possible that employers who make the mistake of thinking that they will simply “mirror the state law” and use such a permissive standard for THC in blood for employees may find themselves on the wrong end of litigation down the road when employees cause injury or death after having tested positive for marijuana without being required to be drug-free as a condition of their employment.”
• Provide Clairity in Drug Free Workplace Programs: Your workplace drug policy is the rulebook. It should clearly define the elements of the drug testing program including who is subject to testing, how testing is administered, how positive results are confirmed, and what the consequences are for positive drug test results. Supervisors and human resources staff should be trained in the employers’ substance use policies and procedures and be able to explain them to all employees and job applicants.Employers conducting workplace drug testing should provide educational opportunities for employees about substance abuse. Programs focused on wellness and/or employee assistance programs should provide education, screening and follow-up services for employees’ drug and alcohol problems. This may include return-to-work agreements provided through employee assistance programs. Provisions for assisting employees with substance use problems should be known to all employees. Encouraging employees to seek treatment confidentially, apart from a testing event, without jeopardizing their jobs is a practice that can help guide employees to recovery. As part of a drug-free workplace, an employer’s substance use policy should address employees under the influence and it should provide training to identify behaviors and related signs and symptoms of substance use.
• Specifically Address Marijuana in the Drug Free Workplace Policy

Download the full IBH report here