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Marijuana Use in the Workplace


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The 1978 stoner classic “Cheech and Chong’s Up in Smoke” was an ominous precursor to the current state of marijuana usage in America. Over the past decade, public perception has changed from considering marijuana usage as an illicit back alley activity to an acceptable recreational pastime—similar to having a few beers. Marijuana in fact remains classified as a “Schedule 1” substance by the Food and Drug Administration (FDA), which makes it illegal to possess or use under Federal law. However, 23 States and the District of Columbia have recently passed laws legalizing the possession and use of marijuana. While most states have legalized marijuana for medical uses, Alaska, Colorado, Oregon and Washington are also allowing recreational use.

The changing environment provides some challenges for businesses as they consider workplace drug policies. Although public perception and state laws have changed, employers still have a duty to protect workers from hazards.

As is the case with alcohol, most state laws allow employers to regulate the use of marijuana at their facilities. Even those states with laws legalizing some aspect of marijuana use do not preclude businesses from setting workplace drug policies. It should also be noted that businesses functioning as Federal Government contractors must comply with The Drug-Free Workplace Act.

Companies employing personnel in safety-sensitive positions (such as pilots, truck drivers, and public transportation engineers*) must meet a duty of care in protecting the public and their own employees. Clearly, drug or alcohol use by employees in these positions interferes with the ability to perform their jobs safely. In fact, the U.S. Department of Transportation continues to consider marijuana unacceptable under its Drug and Alcohol Testing Regulations.

Employers should be sure to clearly define specific job duties requiring special attention to safety within posted job descriptions. It should be noted that most white-collar jobs can be difficult to classify as safety-sensitive, unless driving a vehicle for business is required.

How is Marijuana usage identified in the workplace? Besides observable impairments, employers have historically relied on the distinctive smell of lingering marijuana smoke as an indicator of recent usage. However, with the advent of edible forms of marijuana, an entirely new situation has evolved. Edible forms of marijuana that contain high levels of Tetrahydrocannabinol (THC--the active metabolite in Marijuana) are now available in many forms, including beverages, chocolates, mints, and even topical oils. Edibles impact people much differently than inhaled marijuana, as the effects take longer to develop (20-30 minutes vs. almost instantaneous), and dwell much longer (3-4 hours vs. 15-20 minutes). Current noninvasive biological testing (e.g. urine tests) detects edible marijuana consumption for several weeks after usage, so employees may claim they used marijuana off the job. Other testing approaches (blood, hair, saliva) provide better ability to pinpoint the specific time of marijuana use.

What are next steps? Existing workplace drug policies will need to be reviewed / adjusted, particularly if operations occur in states with legalized marijuana. Employers will need to decide whether to implement a “zero tolerance” policy to specified drugs, or a policy that only prohibits use during work hours. Zero tolerance may be the easiest to enforce and most protective to the employer.

As consultants, we should advise our clients to review and update their Human Resources policies to reflect current laws. We should also be sure to advise clients to make certain their policies undergo thorough legal review. The Society for Human Resource Management SHRM (http://www.shrm.org/) is an excellent resource to which to direct clients.

Acknowledgement: Thank you to Clayton Shoup, Workers’ Compensation Line of Business Director for his contributions to this article.

*Additional safety-sensitive jobs include the following: pilots, bus and truck (CDL) drivers, locomotive engineers, subway operators, aircraft maintenance personnel, ship captains. Specific job duties include:

  • Driving motorized vehicles--including highway, off road, industrial forklifts, or construction equipment
  • Working with heavy machinery
  • Exposure to machinery that might represent entanglement hazards
  • Working at heights or with hazardous chemicals/materials or hazardous processes

Thank you to James D’Errico of Zurich Risk Engineering for this submission