Keep Off the Grass:

Enforcing a Drug-Free Policy That Puts Safety First

By Kirk Ives, Director of Legislative and Regulatory Affairs

Marijuana directly affects your brain. According to the Centers for Disease Control and Prevention (CDC), the parts of the brain responsible for memory, learning, attention, decision-making, coordination, emotions, and reaction time are all negatively affected. Now imagine an employee, dealing with these symptoms, operating a forklift, interacting with customers, making a delivery, or any other day-to-day activity at a lumber and building materials retail location.

Marijuana is the most commonly used drug in the United States, with approximately 22.2 million users each month. Research shows that roughly 1 in 10 marijuana users will become addicted. For people who begin using before the age of 18, that number rises to 1 in 6. 1

The reality is, as marijuana becomes legally easier to acquire and more readily available, employers must be prepared for the possible consequences of an impaired employee impacting their business, their customers, and their co-workers.
As part of the progressive political wave sweeping the nation, medical and recreational marijuana use is either already legal or on its way to being legal in most of the United States. Currently, only three states have not legalized marijuana use in some form: Nebraska, South Dakota, and Idaho. Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Washington, Vermont, and Washington, D.C., have legalized both medical and recreational use.

Not surprisingly, US News & World Report recently detailed a report by clinical laboratory Quest Diagnostics that the rate of American workers testing positive in workplace drug tests hit a 14-year high in 2018, driven primarily by a spike in marijuana use. 2

We are quickly heading toward a United States where marijuana use, both recreational and medicinal, is legal from coast to coast. As a result, a confusing patchwork of laws in each state addressing workplace use and testing has sprung up. Many states, as part of their statute legalizing marijuana, included specific language to prevent discrimination against employees who test positive. Some states prohibit employers from terminating or rescinding a job offer solely for a positive marijuana test: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Oklahoma, Pennsylvania, Rhode Island, and West Virginia.

Other states, such as Nevada, New York, and Massachusetts, impose significant restrictions on an employer’s ability to terminate or rescind an offer for a positive test. Some states allow employers to terminate employees for testing positive for marijuana even though medical marijuana in some form is available for prescription in the state: California, Colorado, Michigan, Montana, New Jersey, New Mexico, Oregon, Washington, Florida, and Ohio.

It is already difficult to find qualified, reliable employees to fill vacancies. The legalization of marijuana intensifies this problem. Unlike alcohol, there is no clear test to identify whether an employee is currently under the influence of marijuana. To date, there is no accepted test for employers to determine if marijuana use occurred on the job or if an employee is currently under the influence.

The expansion of marijuana legalization has spawned numerous companies seeking to develop technology that will accurately detect recent use of Tetrahydrocannabinol (THC), the psychoactive component of marijuana that causes intoxication, using breath samples.  Companies such as Cannabix Technologies and Hound Labs are pursuing devices that test the breath and eliminate the need for blood, saliva, or urine tests. These new breathalyzers seek to eliminate the error of detecting marijuana use from previous days and would be a powerful tool for law enforcement and in the workplace.

Hound Labs recently announced clinical trial results with the University of California, San Francisco (UCSF), in which researchers measured THC in breath. Results confirmed that THC is present in breath for two to three hours after smoking, which is the same duration as peak impairment, according to government studies. 3 The trial also found that detecting THC in breath for two to three hours requires the capacity to measure complex molecules in breath at extraordinarily low levels—to one trillionth of a gram per liter of breath (pg/L). 4

Cannabix Technologies continues to study and test its non-invasive drug impairment recognition system. But as testing progress evolves, one big problem persists: A breathalyzer cannot yet prove a correlation between THC and intoxication. The National Highway Traffic Safety Administration has stated that it is “difficult to establish a relationship between a person’s THC blood or plasma concentration and performance-impairing effects.” 5

These devices, while moving in the right direction, are not yet in use by law enforcement or in the workplace anywhere in the United States. When product testing is complete and the breathalyzers are readily available, the estimated price tag is $5,000 per unit.

In the absence of a definitive test to measure impairment and establish when marijuana was used, employers’ best tool will be a zero-tolerance policy on drug use on the job. The use of any substance, whether alcohol or marijuana, increases the likelihood of accidents occurring, resulting in serious injuries or even death. An increase in accidents will further drive up insurance costs for employers, such as workers’ compensation. In a lumber yard with delivery trucks, forklifts, heavy materials, and power tools, safety is always a priority.

Employers can’t afford to absorb the risk of hiring and/or retaining individuals under the influence, but they also can’t afford to be swept into lawsuits. The protection of law is critical to maintain a safe work environment. Added legal protections for employers are needed in order to guarantee safety for employees and customers. The legal challenge of the situation will play out in legislative chambers and courthouses across the country.

Until new laws are created, businesses, both large and small, will be forced to wrestle with how to honor an employee’s right to consume marijuana while also ensuring no employee is impaired on the job.

Under federal law, marijuana is still illegal. Until it becomes declassified as a Schedule I drug, employers maintain the right to enforce their policies and take disciplinary action at their workplaces.

But that does not mean there will not be lawyers and court cases. In 2015, the Colorado Supreme Court ruled that Dish Network was legally allowed to terminate a quadriplegic man who used medical marijuana at home, because the drug was still illegal under federal law. A federal appeals court in Michigan sided with Walmart in 2012 after the company fired an employee with cancer who had a medical marijuana card because he had a positive drug test.

Between May and August 2017, decisions of the Rhode Island Superior Court and the U.S. District Court for the District of Connecticut sided with the employee in cases of pre-employment drug testing of candidates who were legally using medical marijuana.

As the movement to legalize marijuana continues to grow, employers will need to review their drug testing practices and accommodation procedures. Many businesses’ drug and alcohol policies are more than a decade old and might not reflect current law. Supervisors may need training to identify and address impaired employees. Human resources personnel must be prepared to handle medical marijuana requests.

The enigma of marijuana between legal and illegal makes it critical for employers to understand their state’s laws, maintain and update workplace policies, and enforce a drug-free workplace that puts safety first. It is a challenging time for both the employee and the employer. We live in a world where “Please keep off the grass” signs take on a whole new meaning.  

1    Results from the 2015 National Survey on Drug Use and Health: Detailed Tables, SAMHSA, CBHSQ. http://www.samhsa.gov/data/sites/default/files/NSDUH-DetTabs-2015/NSDUH-DetTabs-2015/NSDUH-DetTabs-2015.htmExternal.
2    https://www.usnews.com/news/national-news/articles/2019-04-11/positive-workplace-drug-tests-hit-14-year-high-driven-by-marijuana-use
 3    April 2014 National Highway Traffic Safety Administration’s “Drugs and Human Performance Fact Sheet.”
4    https://houndlabs.com/2019/02/27/hound-labs-announces-second-clinical-trial-with-ucsf/
5    https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/812440-marijuana-impaired-driving-report-to-congress.pdf