With recreational marijuana legal in AK, WA, OR, CO, and the Dist of Columbia, let alone other states in this next voting cycle, the number of people using marijuana in the United States is rising rapidly, and as a result, it is impacting the workplace. Drug testing services report more positive tests for marijuana, both in pre-employment drug screens and drug tests conducted for other reasons. In fact, CleanFleet’s own positive and refusal testing rates are above 1% in the last two years and has been on the rise over the last three years.
Workplace Safety Concerns
The most common reason why businesses institute a drug-free workplace policy is because many of their employees are involved in safety-sensitive tasks. These businesses want to ensure the health and well-being of their workers and they want to decrease their legal liability in the event an accident occurs. In particular, marijuana use has been linked to an increase in job accidents and injuries and the National Institute on Drug Abuse (NIDA) notes that the short-term effects of marijuana include impaired body movement, difficulty with thinking and problem-solving, memory problems, and an altered sense of time.
In May 2015, an article in the Journal of Occupational and Environmental Medicine concluded that there is a likely statistical association between illicit drug use, including marijuana, and workplace accidents. The impact marijuana use makes on transportation safety can be especially alarming. The drug impairs attentiveness, motor coordination, and reaction time and impacts the perception of time and speed. Studies from NIDA have found that marijuana negatively impacts driving performance and other researchers have found that acute use of the drug increases the risk of crashes and fatal collisions. NIDA also reports that, since Colorado’s legalization of medical marijuana in 2009, the percentage of marijuana-positive drivers involved in fatal motor vehicle crashes there has increased significantly.
Short-term effects of marijuana include impaired body movement, difficulty with thinking and problem-solving, memory problems, and an altered sense of time.
Social Acceptance of Marijuana on the Rise
Social acceptance of marijuana may be increasing because fewer people understand the risk associated it’s use. In 2002, 38% of Americans age 12 and over saw great risk in using the drug once a month. In 2014, that number had fallen to 26.5%. Moreover, these relaxing of attitudes toward marijuana have coincided with an increase in marijuana’s potency. In the 1970’s, marijuana had a content of THC (marijuana’s active ingredient) of about 1%. Today, THC content is nearly 13% and some strains are advertised as having a THC content of around 25% or higher.
Nationwide, use of the drug has increased dramatically. A survey from the National Institutes of Health (NIHA) found that past-year use more than doubled between 2001 and 2013, from 4.1% to 9.5% of the population, and addiction rates increased from 1.5% to 2.9% of the population. A survey by the Substance Abuse and Mental Health Services Administration showed an increase in individuals who reported marijuana use over the past month, which rose from 6.2% of Americans over age 12 in 2002 to 8.4% in 2014.
Marijuana content of THC in the 1970’s about 1%, today 13%+
Workplace Policy Complying with State Laws
Although recreational and medical marijuana use has been legalized under some state laws, most states still allow employers to set-up their own drug-free or drug-use restricted workplace policies. These policies can be varied in their scope and consequences – from complete dismissal from, to mandatory substance abuse programs for positive for positive results, to toleration of certain drugs – depending upon the nature of the business and the business’ level of risk tolerance. However, the common element to workplace drug policies and their interaction with state laws is that in civil suits involving disputes between employers, employees, and drug use, employers almost always prevail, even in states where marijuana use is legal.
For the best example of this case, see Coats v Dish Network in Colorado. The plaintiff, Brandon Coats, accused Dish Network of discrimination and unfair employment practices after he tested positive for marijuana in a post-accident test and was subsequently dismissed. Coats argued that at the time of the test: he was not under the influence, his use of marijuana was medicinal, and Dish Network violated Colorado law by discharging an employee for engaging in activities that are lawful. Dish Network did not dispute the facts of the case but cited that Colorado’s law only applies when the activity is deemed lawful by both state and federal law. Since marijuana use is still illegal under federal statues, Dish Network prevailed
Dish Network, and other large corporations involved in similar cases, won because their drug policies were clear, consented to by employees as a condition of their employment, specific to their business, and, most importantly, in line with federal and state jurisdictions.
Employers in states with medical marijuana laws should be familiar with any employee protections the furnished by state law, including discrimination, drug testing parameters, and accommodation provisions. For example, laws in Illinois, Minnesota, and other states prohibit employers from discriminating against workers on the basis of their status as a registered medical marijuana patient. In Arizona, Delaware, and Minnesota, a positive drug test alone does not indicate impairment. When crafting your policy, you should consult with your attorney and regulatory experts to make sure your policies do not violate state law while still being able to provide you with the level of risk mitigation you desire.