Marijuana Impairment and How Will Evolving Marijuana Laws Impact the Workplace in 2021?
Cities and states are chipping away at employers’ ability to test applicants for marijuana use or deny them employment when an applicant tests positive for marijuana use. A Nevada law (A.B. 132) went into effect January 1, 2020, prohibits employers from denying anyone employment who tests positive for marijuana, with some exceptions for particular occupations and safety-sensitive roles. A similar law went into effect in New York City May 10, 2020, completely barring preemployment testing for marijuana use.
The National Safety Council (NSC) has been vocal both about the impairing effects of marijuana and employers’ right to insist on having drug and alcohol-free workplaces, including the use of testing for drug and alcohol use and abuse.
OSHA believes that if employees know they will be drug tested following an on-the-job injury, regardless of whether or not drug use was a factor in the incident, employees will be less likely to report injuries. And in situations where drug or alcohol use is unlikely to have caused or contributed to an incident, requiring employees to submit to a drug test could be considered retaliatory.
However, OSHA does not ban post-accident drug testing altogether. Instead, it requires employers to have a valid safety-related reason for performing a post-accident drug test, such as contributing to a root cause analysis. If drug testing is used to investigate and determine the root cause of an incident, then all employees whose conduct could have contributed to the incident should be tested, not just the employee or employees who reported injuries.
However, OSHA’s scrutiny of drug testing programs applies only to post-accident drug testing. On October 11, 2018, the agency clarified that examples of permissible drug testing include:
· Random workplace drug testing;
· Drug testing unrelated to the reporting of a work-related injury or illness;
· Drug testing under a state workers’ compensation law;
· Drug testing under other federal laws and regulations, such as DOT rules; and
· Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.
Actions for Employers
It may seem as if the tools employers can use to combat drug use on the job are becoming fewer by the day. However, you do not have to tolerate marijuana use on your premises or a worksite you control, and you do not have to look the other way if employees show up for work impaired.
It may be helpful to think about marijuana use as analogous to alcohol consumption. Would you put up with a drunk or chronically hungover worker? Employees must be fit for duty at work, regardless of the potential source of impairment.
A clearly written drug and alcohol policy is a key step for employers looking to protect their interests and avoid liability. It is important to update all policies in 2021 to ensure compliance and that your company is not discriminating against anyone. But first, consult with legal counsel about the situation in your municipality, county, and state. Questions to address include:
· Is there a ban on preemployment testing in your area?
· Are there restrictions on random drug testing?
· Are there any antidiscrimination laws for medical marijuana cardholders in your locality?
· Are there relevant privacy protections in your state?
· What actions can you legally take if an employee tests positive?
Job Applicant Testing
Whether you can test job applicants or employees for drug use and what actions you can legally take when someone tests positive depends on the laws in your jurisdiction. Laws vary from state to state—and even within states—when it comes to:
· What questions you can ask a job applicant about current or prior drug use and any arrests or convictions for drug possession;
· Whether you can require preemployment drug testing; and
· How you can deal with a positive drug test result.
Unlike alcohol, marijuana is classified as a Schedule I substance under the Controlled Substances Act. A much smaller number of studies have looked at the impairing effects of marijuana use on driving related skills. Less is known about these effects due in part to the typical differences in research methods, tasks, subjects and dosing that are used.
The detection of driver drug impairment typically takes place as a result of a law enforcement officer observing inappropriate driving behavior or a work related incident or accident. The officer will stop the vehicle and engage the driver in conversation while the driver is inside the vehicle. The officer at this time may form a suspicion that the driver is impaired. This suspicion can be based on observations of driving behavior, the appearance of the driver (e.g., face flushed, speech slurred, odor of alcoholic beverages on breath), the behavior of the driver, and any statements the driver has made about alcohol or drug use.
A U.S. Supreme Court case decision said that warrantless blood tests of alcohol concentration are not generally allowed (Missouri v. McNeely, No. 11–1425, decided April 17, 2013), although warrantless breath alcohol tests are generally permissible as they are less intrusive than blood tests of alcohol concentration (Birchfield v. North Dakota, No. 14–1468, decided June 23, 2016).
Currently, there is no impairment standard for drivers under the influence of marijuana. They include the fact that there is no chemical test for marijuana impairment, like a BAC or BrAC test for alcohol that quantifies the amount of alcohol in their body, indicates the degree of impairment, and the risk of crash involvement that results from the use of alcohol.
Fifteen States have drug per se (zero tolerance) statutes. In seven States (AZ, DE, GA, IN, MN, PA, and UT) it is illegal to have any amount of a drug or its metabolite in the body while operating a motor vehicle (note: the Minnesota law exempts marijuana). In five States (IL, IA, MI, RI, and WI) it is illegal to have any amount of a prohibited drug in the body while operating a motor vehicle. Three States (NV, OH, and VA) make it illegal to have specific amounts of specified prohibited substances in the body while operating a motor vehicle. Two States (NC and SD) make it illegal for a person under age 21 to drive with any amount of a prohibited drug or substance in their bodies. Five States (CA, CO, ID, KS, and WV) make it illegal for any drug addict or habitual user of drugs to drive a vehicle. Only a few States (HI, NY, and CA) have DUID statutes separate from their alcohol driving under the influence (DUI) laws. In all other States, a driver violates a DUI statute if he/she drives under the influence of alcohol, drugs or a combination of alcohol and drugs. The violation is the same, as are the penalties. The one exception is the State of Washington in which there are different penalties for only drug use, as opposed to alcohol use or a combination of alcohol and drug use.
Marijuana remains an illegal Schedule I drug from a federal perspective. However, due to the public’s changing views of marijuana most States have passed laws providing for some type of limited use of marijuana. These laws include outright legalization of personal recreational use, decriminalization of personal use, State laws allowing therapeutic use (“medical marijuana”), and State laws allowing limited therapeutic marijuana use.
This is similar to the case for alcohol, which is a legal drug, but driving impaired by alcohol is illegal. This changing perception of the dangers of marijuana use is likely impacting personal choices regarding marijuana use. As more people choose to use marijuana it is likely more people will drive or work impaired by marijuana.