JEA 2nd quarter 2020
Cannabis in the Workplace: A Continually Changing and Complicated Issue
By Tamara Cagney
The issue of cannabis in the workplace in the US is like a moving target that continues to develop as a result of a myriad of changing laws and court rulings. Some recent examples:
* A New Jersey court ruled that employers must reimburse employees for medical cannabis, despite its continued illegality under federal law.
* In Nevada, where recreational legalization went into effect January 1, 2020, employers cannot deny employment to applicants testing positive for cannabis, with some safety-related exceptions.
* In New York City, pre-employment cannabis drug tests generally won’t be allowed.
* Illinois law prevents employers from disciplining or terminating employees for using “lawful products off the premises of the employer during nonworking hours.”
Lack of Uniform Laws
EA professionals and employers are undoubtedly aware of the ever-changing landscape of cannabis laws across the country. Complicating matters for larger employers is that these evolving statutes are creatures of state law with little uniformity across jurisdictions.
Thirty-two states now allow for medical cannabis use. Each state has its own system for handling medical cannabis. Some states limit the potency of the available cannabis, while other states restrict when it can be used, limiting it to only a specified list of illnesses. When cannabis was first legalized under state medical cannabis programs, many states permitted employers to terminate employees testing positive for cannabis, even if they were legal card holders under a state program.
However, states that later enacted medical cannabis programs began including anti-discrimination provisions prohibiting employers from taking action against employees based on their status as lawful medical cannabis users.
States that currently have such anti-discrimination provisions include Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, and West Virginia.
Staggering Costs; Impairment Guidelines Unclear
CurrentCompliance.org, which catalogues drug testing laws, called cannabis related costs “staggering.” According to one study, in states where medical cannabis is legal, Social Security Disability Insurance claims rose 9.9 percent post-legalization. Occupational Health & Safety magazine offered additional warnings of increased workers’ compensation claims, health care and liability insurance premiums, and litigation costs.
Eleven states, including California, Oregon, Washington, Illinois and Colorado, have legalized the personal use of cannabis. Legalized recreational cannabis is seeing an uptick in protections as well. Nevada, Maine, and New York City prohibit employers from testing for cannabis during the employment application period altogether.
Employers can still prohibit employees from working while impaired, but cannabis remains in someone’s system far longer (up to 30 days) than alcohol, so how can impairment be proven? And few guidelines exist in cases where a disciplined employee contests a penalty. There are a myriad of methods for testing for cannabis but the most commonly used methods, urinalysis and blood testing, do not indicate whether the employee is impaired at the time of the test.
New technology for breath testing claims to show impairment but has a much shorter window of time (60-90 minutes) by which the test must be taken. In addition, it has yet to be proven reliable in detecting impairment. As a result, a positive drug test does not necessarily demonstrate that an employee is impaired at work or has used cannabis while working.
Cannabis Use Unsafe for Safety-Sensitive Employees
One thing is clear about cannabis in the workplace: “It is unsafe to be under the influence of cannabis while working in a safety-sensitive position,” says the National Safety Council (NSC), which found – what common sense tells us, that such impairment can lead to injury or death for both operators under the influence and others.
NSC laid out its position in a recent policy statement, in support of transferring medical cannabis users to non-safety sensitive positions. The American Industrial Hygiene Council has concurred with that idea. A “safety-sensitive” position impacts the safety of the employee or others as a result of performing the job. Being under the influence adds another layer of risk.
Cannabis, NSC says, is the most widely used “illicit” substance in the world. “The amount of THC [tetrahydrocannabinol] detectable in the body does not directly correlate to a degree of impairment,” the Safety Council acknowledges. But it adds that “there is no level of cannabis use that is safe or acceptable for employees who work in safety-sensitive positions.
Cannabis Use Leads to More Accidents, even Addiction
A study of postal workers by the National Institute on Drug Abuse asserts that employees who tested positive for cannabis had 55% more industrial accidents, 85% more injuries, and 75% greater absenteeism compared to workers who tested negative. The dangers aren’t limited to a physical accident, such as in construction or manufacturing. There is a significant risk from office workers’ impaired judgment. Think about a bookkeeper, an accountant, or a programmer, all of whom have jobs where accuracy is at a premium.
A study by the Rocky Mountain High Intensity Drug Trafficking Area found that the annual rate of emergency department visits related to cannabis increased 52% after legalization in Colorado. And the Insurance Institute for Highway Safety found that police-reported collisions increased more than 5% in the rate of crashes per million vehicle registrations, after cannabis was legalized in Colorado, as measured against states where the drug is not legal.
And as EA professionals know, no one is immune from developing cannabis use disorders. Addiction to cannabis is real. NIDA reports that cannabis use can lead to the development of problem use, which takes the form of addiction in severe cases.
Recent data suggest that 30 percent of those who use marijuana may have some degree of marijuana use disorder. And of even more concern for the employees of the future, young people who begin using marijuana before the age of 18 are four to seven times more likely to develop a marijuana use disorder than adults.
Impact on Workers Compensation
The area of Workers Compensation and paying for the medical care of injured workers is another area where changes regarding medicinal cannabis are striking. A few years ago, the New Mexico appellate court issued a decision that required insurers to provide reimbursement for an injured worker using medical cannabis to treat their injury. This was a first of its kind decision and seems to be signaling a trend.
In 2017, a New Jersey administrative law judge ruled that a workers’ compensation carrier was responsible for reimbursement of medical cannabis for an injured worker who was using the cannabis to treat one of their covered injuries. And in Minnesota, an insurance carrier paid for an injured workers’ use of medical cannabis to treat muscle spasms.
In contrast, other states, like Arizona, take the opposite position that a workers’ comp carrier cannot be compelled to pay for medical cannabis because it remains illegal on the federal level. Medical cannabis also remains absent from treatment guidelines. In the cases where it was found to be proper treatment for an injured worker, the physician only “prescribed” it after trying other forms of treatment unsuccessfully. Even if cannabis is used as a medical treatment for a workplace injury, much like when they are prescribed opioids, they may be prevented from returning to work. Further, if they’re allowed to return to work, it raises issues about whether medical cannabis would violate the drug free workplace rule.
Legislation legalizing recreational cannabis is everywhere – and more and more states are heading in that direction. In many industries where there are safety sensitive jobs and many jobs involve operating heavy equipment and manufacturing drug use in the workplace will always be a serious concern for employers.
Increased access to cannabis combined with a decreased perception of harm have resulted in a variety of protections being enacted for cannabis users. What does all this mean for employers who aspire to maintain zero tolerance drug policies? Experts are advising employers to start treating cannabis use more akin to how employers treat alcohol.
Of course, there may be exceptions, say for employees in certain safety-sensitive positions or those subject to federally mandated testing procedures. But the days of blanket zero tolerance drug policies, at least for cannabis, may be behind us.
Additionally, employers must understand the intersection between the Americans with Disabilities Act (ADA) and medical cannabis usage. While employers are never required to permit on-the-job cannabis usage, they are required to reasonably accommodate an employee’s qualifying disability under the ADA and must still engage an employee in the usual interactive process under the ADA.
When adverse employment decisions appear too closely related to the disability itself, rather than cannabis usage, courts have reacted negatively. In addition, mainstream attitudes toward cannabis usage are changing. Moral opposition to cannabis use will not be a good defense for an employer if a disabled individual seeks relief from legally using cannabis under state law.
Opportunity for EAPs
In this complicated and changing environment, EA professionals can help employers ensure that their policies regarding drug testing comply with the laws of the states in which they operate, are clear and enforced consistently.
Additional consideration is obviously needed for unionized facilities, including looking closely at applicable collective bargaining agreements, and understanding that labor arbitrators often view off-duty conduct differently than workplace misconduct.
In states that require accommodation, if an employer wishes to maintain a zero-tolerance drug free workplace policy, it should consider identifying and developing a legally defensible business justification for why it is unreasonable to accommodate off-duty cannabis use. This will require the employer to study medical cannabis usage and consult with legal counsel. If no such legally defensible business justification exists, the employer may consider modifying its policy for the business.
Dr. Tamara Cagney is the immediate past president of EAPA. She has provided Employee Assistance Program (EAP) services for over 40 years in both the public and private sectors, in unionized and non-unionized settings. Tamara is the chief trainer for EAPA’s two-day trainings for DOT substance abuse professionals (SAPs) focused on assessment, level of care, and follow-up testing determinations and return-to-work issues for DOT-regulated employees. Tamara can be contacted at firstname.lastname@example.org.
CBD Use Increasing Even Though it’s Not Authorized
In December 2018 the Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances.
As a result, CBD oil, or cannabidiol mixed with a carrier oil, is going mainstream and increasingly found on store shelves such as CVS, Rite Aid, and Walgreens. An estimated 64 million people have tried CBD in the past 2 years according to a survey by Consumer Reports of more than 4,000 adult Americans, using it for pain, insomnia, anxiety, and other health problems.
This has created many questions for both employers and employees. The primary one is “Can I test positive if I use CBD products?” Problems arise when employees test positive for THC but then claim to be using a “THC-free” or “pure CBD” product. If the product has less than 0.3% of THC, and the employee isn’t smoking or using other marijuana products, we generally would expect the employee’s drug test to return a negative test result.
What You Might Not Know about CBD
While employers and DOT do not test for CBD, CBD products often have more THC than claimed. For example, a 2017 JAMA study found that 18 of 84 CBD products, all purchased online, had THC levels possibly high enough to cause intoxication or impairment. And those elevated levels might also be high enough to cause an employee not to pass a drug test. It is also possible that over time, the small amounts of THC allowed in CBD products could build up in the body to detectable levels.
DOT’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.
It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”
A good resource to give employees about the dangers of using CBD products if the employee is subject to drug testing is the Consumer Reports article “Can You Take CBD and Pass a Drug Test?” https://www.consumerreports.org/cbd/can-you-take-cbd-and-pass-a-drug-test/
In February 2020, the Department of Transportation issued new guidance on CBD, https://content.govdelivery.com/accounts/USDOT/bulletins/27bd19f.
Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include: pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.
Opportunity for EAPs
EA professionals working with employers who have DOT-regulated employees can assist employers in reviewing their policies and revising their policies to address CBD use; training their managers and supervisors on how to address situations where an employee defends a positive drug test by claiming use of CBD; educating employees about CBD; and having a conversation with their drug testing providers about CBD and the lab’s drug testing and reporting processes.
The best advice for employees who get tested: Stop or skip using CBD products if faced with drug testing at work. That’s the only way to ensure that CBD won’t trigger a positive test result for THC. And that includes stopping use of topical CBD lotions, oils, and cosmetic products.
- Tamara Cagney