Are the New Marijuana Laws a Threat to Workplace Safety?

So far, 33 states and Washington, D.C., have legalized medical marijuana use and 11 states have approved both its medical and recreational use among adults age 21 and older. On May 31, Illinois became the latest state to legalize recreational marijuana, effective in 2020. A vote in the state of New York is imminent. Last year, Canada became the first industrialized nation to legalize cannabis for recreational use. The federal government in the U.S. still considers pot an illicit drug, but has left its regulation and enforcement largely in state and local hands. A 2018 Pew Research Center survey found that 62 percent of U.S. respondents believe marijuana use should be legal, twice as many as in 2000. Responding to the shifting public sentiment, one state after another has decided it makes more sense to legalize and tax the marijuana industry out in the open than to fight a losing law enforcement battle in the shadows.

As is common knowledge, the THC in marijuana offers a high that can affect depth perception, reaction time, coordination and other motor skills. For someone operating machinery or delivering products in a vehicle, these effects can be deadly. Studies have shown that employees who test positive for marijuana have increased incidents of accidents, injuries and absenteeism. For employers, this can mean decreased productivity, increased worker compensation and unemployment claims, higher turnover and greater potential for lawsuits.

Here’s perhaps the most important point for employers: Just because marijuana is now legal in many jurisdictions doesn’t mean it’s acceptable in the workplace. In most states, employers remain free to discipline, even fire, employees who use marijuana on the job or show up at work under the influence, even if they need it for a medical condition. While it is unlawful in some states to discriminate against workers because they have a medical marijuana card, employers can still require sobriety at work and treat marijuana as they would alcohol or prescription drugs. No state law forces employers to accommodate recreational use, reports the Society for Human Resource Management (SHRM).

Drug testing works, noted the National Safety Council in a recent report. Studies have shown that employees are three times less likely to produce a positive result if they know they may be tested. An expanded testing panel that also includes the most commonly abused prescription drugs may better protect a company’s workforce. An employer policy also should include proper management training to make managers more likely to enforce the policy; access to support for employees with drug problems; clearly defined use and possession parameters for employees; established rules for post-accident testing; and rules on how the company will handle an employee’s conviction or arrest.

A drug policy must be very specific and enforced consistently to avoid costly litigation. Without a policy, employers run the risk that a drug test and subsequent termination could be reversed by a court, which can cost thousands in back wages, punitive awards and attorney fees.

The Americans with Disabilities Act (ADA) prohibits companies with 15 or more employees from discriminating against workers based on disability or medical condition. With the advent of medical prescriptions for marijuana, this becomes a bit trickier. Employers can still enforce their substance abuse policies to ensure a safe working environment for all, experts say, but must remain mindful of individual employees’ medical needs.

In a recent blog, Zenefits, an HR consulting and technology firm, offered some questions to consider when setting up a company marijuana-in-the-workplace policy:

1. When and under what circumstances will we test employees?
2. What substances will we test for?
3. Who will conduct the tests?
4. What are the employees’ rights and responsibilities under the policy?
5. What is the timeframe within which an employee must submit to a test?
6. What is the process to determine a medical exception to the policy?
7. What happens to the employee in the event of a failed test?

Zenefits recommends the following if an employer suspects an employee’s intoxication contributed to a workplace accident: Document the employee’s behavior after the incident, recording everything that happened in detail. If possible, collect signed witness statements. And drive the employee to a drug testing facility—don’t send them on their own.

In light of the recent state law changes, experts agree, companies should create a drug policy or have their current policies and practices reviewed and updated. Policies need to be tailored to the organization and its corporate culture and depend on the nature of the business, the states in which it operates, and what types of testing are planned or required. The health and safety of your workforce depends on it.

Steel Market Update Wants Your Feedback

Steel Market Update would like to start a dialog on marijuana/drug use in the steel industry. How big a problem is it, and what can we do about it? Do you believe new laws legalizing marijuana will pose new problems for the industry? Or is pot already “baked into” the workplace culture? We would appreciate your comments, for attribution or off the record. Please email your thoughts to John@SteelMarketUpdate.com or Tim@SteelMarketUpdate.com