JEA Q. 2 2019
Attitudes, Laws Concerning Cannabis Evolving Rapidly
By Tamara Cagney, EdD, CEAP
Not since the advent of managed care have employee assistance professionals seen a shift in public health and public opinion as far reaching as the rapidly evolving attitudes and laws concerning cannabis.
Although cannabis is an illegal drug under US federal law and the Americans with Disabilities Act does not protect its use, even for medicinal purposes, a majority of states have now legalized its use in one form or another. Ten states have now legalized cannabis for adult recreational use, while 33 states including the District of Columbia, Guam, and Puerto Rico allow medical use. In 2018 Canada legalized adult recreational use of cannabis nationwide.
Proposals for loosening America’s federal prohibition abound in Congress and cannabis seems to be on an unstoppable roll to legalization in the United States. Some 65 percent of Americans favor legalization, and several potential candidates for US president support ending federal prohibitions on cannabis.
Here are the states that are most likely to legalize cannabis for adult recreational use in 2019, in alphabetical order:
* Connecticut - Gov. Edward Lamont calls “legalization an idea whose time has come.”
* Illinois - Gov. J.B. Pritzker says “legalizing marijuana would create 24,000 jobs.”
* Minnesota - Gov. Tim Walz “trusts adults to make personal decisions based on their personal freedoms.”
* New Hampshire - The Granite State is one place that could legalize cannabis in 2019 even with strong gubernatorial opposition,
* New Jersey - Garden State Gov. Phil Murphy, has continued to push for an end to prohibition.
* New Mexico - Gov. Michelle Lujan Grisham states “marijuana will bring hundreds of millions of dollars to New Mexico’s economy.”
* New York - Gov. Andrew Cuomo says that ending cannabis prohibition is one of his top priorities for 2019.
* Rhode Island - Gov. Gina Raimondo says that her state might be effectively pressured into ending cannabis prohibition by neighboring states.
Shift Toward Employee Protection
Courts in Rhode Island, Massachusetts, and Connecticut have offered workplace protections for employees utilizing medical cannabis off duty and there are no signs that this trend will end. But EA professionals should be aware that these laws are far from uniform, and the courts have taken different views on the enforceability of zero-tolerance policies.
Two recent cases illustrate this conundrum:
* The U.S. Court of Appeals for the Ninth Circuit held that Montana law permitted an employer to discharge an employee for testing positive for cannabis use.
* The U.S. District Court for the District of Connecticut held that Connecticut law prohibited an employer from rescinding an offer of employment to an applicant who used medical cannabis.
In a significant shift away from decisions in favor of employers, both courts agreed that the federal Drug Free Workplace Act does not preempt state legalization laws, and every employer must be cognizant of applicable state requirements to accommodate or not to discriminate against cannabis users.
Public Attitude Continues to Evolve
The huge shift in public attitudes to cannabis is fed by a decreased sense of risk and increased access to the drug. The US moves towards legalization even though most Americans do not use the drug. Only 15 percent of people over 12 used it even once in 2017, according to a large federal survey. That year, only three million people tried it for the first time.
Unfortunately, there has not been a loud and clear message that the cannabis of today is not the same as the pot of the 1970s. Many Americans remember cannabis as a relatively weak drug that they used casually in social settings like rock concerts. In the 1970s and 1980s, cannabis generally contained less than 5% THC. Today, the cannabis sold at legal dispensaries often contains a minimum of 25% THC. In fact, many people use extracts that are 80% THC or higher.
In other words, there has been a dramatic change in the drug’s potency even though the general public does not perceive cannabis as being any more dangerous than it was decades ago. In fact, we do not know the impact of prolonged use of high potency cannabis, especially on developing addiction.
And although legalization hasn’t led to a big increase in Americans trying the drug, it has meant that those people who already use it do so far more frequently. In 2005, about three million Americans used cannabis every day. Today, the figure is eight million.
Put another way, about one cannabis user in five uses it daily. By contrast, only one in every 15 drinkers, about 12 million Americans, consumes alcohol every day.
Not long before Canada legalized nationwide adult recreational use of cannabis, Beau Kilmer, a drug-policy expert with the RAND Corporation, testified before the Canadian Parliament. He warned that the fastest-growing segment of the legal market in Washington State was extracts for inhalation, and that the mean THC concentration for those products was more than 65%.
“We know little about the health consequences—risks and benefits—of many of the cannabis products likely to be sold in nonmedical markets,” he said. Nor do we know how higher-potency products would affect THC consumption.
Health Impact and Implications
Several years ago, the National Academy of Medicine convened a panel of 16 leading medical experts to analyze the scientific literature on cannabis. The report they prepared, issued in January 2017, runs 468 pages. It contains no surprises, which perhaps explains why it went largely unnoticed. It simply stated, repeatedly, that cannabis, the drug North Americans have become enthusiastic about, remains a mystery.
For example, smoking pot is widely supposed to diminish the nausea associated with chemotherapy. But, the panel pointed out, “there are no good-quality randomized trials investigating this option.”
We have evidence for cannabis as a treatment for pain, but “very little is known about the efficacy, dose, routes of administration, or side effects of commonly used and commercially available cannabis products in the United States.”
Is it good for epilepsy? “Insufficient evidence.” Tourette’s syndrome? Limited evidence. A.L.S., Huntington’s, and Parkinson’s? Insufficient evidence. Irritable-bowel syndrome? Insufficient evidence. Dementia and glaucoma? Probably not. Anxiety? Maybe. Depression? Probably not.
Proponents of legalization have postulated that the use of cannabis will decrease opioid overdoses. This analysis is complicated by the fact that the first wave of cannabis legalization took place on the West Coast, while the first serious wave of opioid addiction took place in the middle of the country. So, if all you do is eyeball the numbers, it looks as if opioid overdoses are lowest in cannabis states and highest in non-cannabis states.
Areas of Concern
Areas of concern for employee assistance professionals include:
* The potential for addiction to cannabis;
* Limited insurance coverage and access barriers to treatment for cannabis use disorders;
* The correlation with mental illness;
* The dangers of someone who is high getting behind the wheel or performing safety sensitive work;
* The long-term respiratory health impact of smoking (or second-hand exposure to) cannabis; and
* Underage use of cannabis by youth.
Judith Grisel, a professor of psychology and a practicing neuroscientist stated, “In our rush to throw open the gate, we might want to pause to consider how well the political movement matches up with the science, which is producing inconveniently alarming studies about what pot does to the adolescent brain.”
With large studies in peer-reviewed journals showing that cannabis increases the risk of psychosis and schizophrenia, the scientific literature around the drug is far more negative than it was 20 years ago.
Substance Abuse and Mental Health Services Administration (SAMSHA) surveys also show that rates of serious mental illness are rising nationally, with the sharpest increase among people 18 to 25, the ones who are also the most likely to use cannabis. Surveys and hospital data cannot prove that cannabis has caused a population-wide increase in psychosis, but they do offer intriguing evidence.
Developments to Come
In December 2018 one thing many people missed was the authorization of an unprecedented bill that ended federal prohibition for one strain of cannabis. The 2018 Farm Bill modified the Controlled Substances Act to exempt hemp from its definition of cannabis. Hemp preparations contain CBD, which is a chemical component of the cannabis sativa plant, more commonly known as marijuana.
However, CBD does not cause intoxication or euphoria (the “high”) that comes from tetrahydrocannabinol (THC). What this means is that a category of cannabis called hemp, which contains less than 0.3% of the psychoactive ingredient THC, will be removed from its Schedule 1 classification under the Controlled Substance Act of 1970. The FDA is still developing regulations regarding CBD products sold as food, supplements or medication.
Also in 2018 the U.S. Food and Drug Administration approved Epidiolex (cannabidiol) (CBD) oral solution for the treatment of seizures associated with two rare and severe forms of epilepsy. This is the first FDA-approved drug that contains a purified drug substance derived from cannabis.
Next year will see still more movement in state legalization regardless of US federal classification of cannabis as a schedule I drug. Looking ahead to the 2020 presidential election, states like Arizona, Florida, Ohio, and North Dakota could consider ballots to fully legalize cannabis, while Mississippi, Nebraska, and South Dakota could see medical cannabis questions.
* In Kansas, for example, Gov. Laura Kelly supports legalizing medical cannabis, setting the state up to join its neighbors, Missouri and Oklahoma, in allowing patients to use the drug with their doctor's recommendation.
* Wisconsin Gov. Tony Evers says he wants to decriminalize cannabis and allow medical cannabis and supports letting voters decide on a referendum to fully legalize cannabis.
* In Pennsylvania, Gov. Tom Wolf, who until recently said that the state is not ready for legalization, now says that he’s ready to take a serious look at the issue. He also supports moving ahead immediately to decriminalize cannabis possession.
* In Texas, Gov. Greg Abbott indicated during a debate that he is open to some form of cannabis decriminalization and advocates will also push lawmakers to legalize medical cannabis.
* Finally, advocates are making it a priority to encourage South Carolina lawmakers to legalize medical cannabis.
Though cannabis legalization continues state by state, federal laws still prohibit its use, cultivation, and sale. With federal policy often at odds with states that have gone through with legalization and decriminalization of both recreational and medical cannabis, employers and businesses are put in a difficult position. Employers must balance complying with often divergent federal and state laws, maintaining a safe work environment, and protecting employees’ rights.
Many experts have hypothesized that cannabis will not be rescheduled until a reliable test for actual impairment is available to employers and law enforcement. The fact that there is no scientific way to determine impairment, and that drug tests just indicate the presence of the cannabis metabolite that could be from ingestion days before, has employers reexamining their drug testing programs.
So far only seven states, including Washington and Montana, have set legal guidelines as to how much THC in the system makes you dangerous behind the wheel. Yet some scientists are skeptical, saying those limits aren’t really backed by hard science.
Several firms are actively working to develop and bring to market a portable breathalyzer that would indicated recent use within 60 to 90 minutes. With today’s high potency cannabis that could be the gage for impairment.
Expect to see more legislation that makes it unlawful for a business to take adverse action against an employee for off-premises conduct that is lawful or for a positive drug test for cannabis – unless the employer can show “by a preponderance of evidence that an employee’s lawful use of cannabis has impaired the ability to perform the employee’s job.”
Employee assistance professionals are in a unique position to consult with employers regarding cannabis policies, treatment benefits and disciplinary procedures. Check out “Cannbis@Work: Employee Assistance Professionals Toolkit”, at http://www.eapassn.org/CannabisatWork for additional information.
Tamara Cagney, EdD, MA, BSN, CEAP, is an internal EAP at Sandia National Laboratories in Livermore, Calif. She is also Immediate Past President of EAPA. She may be reached at firstname.lastname@example.org.