Article contributed by Mark Adams
For many employers, drug testing has been a key staple in supporting an overall initiative to maintain a safe workplace. Most of these programs had included marijuana among the drug testing panels. However, with the rising tide of states legalizing marijuana (either for medicinal purposes, recreational purposes or both), the question is does marijuana testing still have its place?
It depends upon your organization and objectives. If you are testing to meet some defined federal contract, subcontract or to comply with a law or regulatory standard (such as is the case with federal motor carriers who are subject to DOT regulations), then chances are you are not adjusting those programs – at least as it pertains to those operating under those situations.
However, we also know that marijuana testing does not identify whether one is impaired per se, but rather the existence of “THC” (short for delta-9-tetrahydrocannabinol), in one’s system. According to the Mayo Clinic, it can vary from as little as 3 days for occasional users upwards to 30 days for chronic users. Thus, just because one has THC in their system does not mean that one is impaired, nor can it quantify when one consumed marijuana. Therefore, if your objective behind such testing is to identify whether one is impaired in the workplace, marijuana testing – absent other factors – does not necessarily meet that goal and, depending upon your state, you may need to expunge marijuana from some of your drug testing practices. [According to US News, 19 states of legalized marijuana for recreational use.]
For these affected companies, the question then becomes “how do I avoid employees coming to work high?” Many states that have legalized its use (such as Massachusetts, Rhode Island and most recently Connecticut); do not protect people from coming to work high. Moreover (when it comes to testing), testing may still be a consideration where reasonable suspicion of being under the influence of marijuana exists. The question then becomes whether you may be able to defend the application of your drug-testing program on those grounds.
According to the National Institutes of Health’s National Institute on Drug Abuse, Marijuana effects can include:
- altered senses (for example, seeing brighter colors)
- altered sense of time
- changes in mood
- impaired body movement
- difficulty with thinking and problem-solving
- impaired memory
- hallucinations (when taken in high doses)
- delusions (when taken in high doses)
- psychosis (risk is highest with regular use of high potency marijuana)
Training your managers and supervisors on reasonable suspicion can help avoid inconsistent application of your drug testing as well as potential underlying bias that may expose you to risk on other grounds (such as allegations of unlawful discrimination).
Even for companies that do not drug test at all, training your managers and supervisors on reasonable suspicion makes good business sense. After all, if the real underlying objective is to maintain a safe workplace, should the focal point become identifying whether someone is unfit to work rather than necessarily what substance is causing that outcome or behavior? That being stated, such training should also include or be augmented with training on the subject of reasonable accommodation and the Americans with Disabilities Act (ADA) to account for potential contingencies where unfit behavior is due to other considerations (such as side effects from medications that are being used to treat a medical condition or disability).
While the acceptance of marijuana in society and the changing legal landscape comes with questions for many employers, it does not need to be at the expense of compromising safety in the process. What it does mean is that employers need to retool their practices and strategies to meet their operational and safety needs.