Whether you are for or against the legalization of Marijuana, state legalization of marijuana is of real concern to employers who strive to maintain productivity, ensure workplace safety, and protect workers’ rights. As marijuana is legalized, usage escalates. For example, after marijuana was decriminalized in Colorado, the number of positive workplace drug tests increased by 20 percent, compared to a national average increase of five percent.
Marijuana and the Treatment of Pain
As state laws loosen an acceleration of research has discovered more applications to treat symptoms of diseases and lessen the side effects associated with traditional medical treatments. In California, the first state to allow medical marijuana (1996), 40 percent of people who take the drug for medicinal purposes use it for chronic pain. In a separate study, the Washington Post reported that 92% of patients say medical marijuana alleviated symptoms of their serious medical conditions, including chronic pain, arthritis, migraine, and cancer. Other research sites that medical marijuana is commonly used to treat some conditions including seizures, nausea and vomiting from chemotherapy, and pain.
Changing State Legislation
Twenty-six states and the District of Columbia currently have laws legalizing marijuana in some form. Three other states will soon join them after recently passing measures permitting the use of medical marijuana. In April 2016, Pennsylvania, a bill legalizing marijuana use in 17 qualifying diagnosed conditions. In neighboring New Jersey, legal medical use is limited to around ten specific medical conditions, or any imminent terminal illness, with doctor approval. This variation from state to state places employers in the delicate position of attempting to comply with divergent laws; while maintaining health, productivity, and safety in the workplace. For multi-state employers, the issue is even more complex. Reconciling varying state laws on everything from legalization, permitted use, and lawful drug testing is a challenge. Although state laws vary, what is undeniable in every state is that these laws don’t require employers to permit drug use in the workplace or tolerate employees who report to work under the influence.
Federal Law and Regulations Add to the Challenge
Federal regulations still prohibit marijuana use. And under the regulations, several classes of employees must undergo regular testing for drugs, including marijuana. Industries, such as transportation, nuclear energy, and military contracting are heavily regulated. For example, the Department of Transportation has issued guidance for its Drug and Alcohol Testing Regulations, stating that “it remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s regulations to use marijuana.” Safety‐sensitive transportation workers include pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains and pipeline emergency response personnel, among others.
Also, the Americans with Disabilities Act (ADA) doesn’t require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient. The 9th U.S. Circuit Court of Appeals has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”
Despite the trend towards legalization, marijuana is still designated as a Schedule I substance under the Federal Controlled Substance Act (CSA), which criminalizes the possession, manufacture, distribution, and sale of the drug. The tension between federal and state law has led to confusion and challenges. Across all industries, employers of individuals who use marijuana are also grappling with the conflicts between state and federal law. But under Schedule I – there is no legal use.
Zero Tolerance Policies in the Workplace
Employers in states in which marijuana has been legalized must first determine whether their workplace is regulated by The Drug Free Workplace Act. The Act requires that all federal grant recipients and federal contractors adopt a zero tolerance policy at their workplaces and certify to the federal government that their workplaces are drug free. If an employer is not required to comply with the Act, such employer can still institute a zero tolerance policy for those workers in “safety-sensitive” positions — one in which an employee is responsible for the safety of others.
What Can Employers Do?
Given these varying and potentially inconsistent requirements, what should a company do to ensure both compliance with state and federal laws and protection of workplace safety?
- Review your state’s laws on discrimination against marijuana users. Make sure your policies are consistent with state anti-discrimination statutes.
- Continue to comply with federal regulations.
- Review your drug-use and drug-testing policies to ensure that they clearly explain your expectations regarding impairment, marijuana use outside of company time and drug testing.
- Make sure you are prepared to follow consistently your stated procedures.
- As part of your review, articulate whether you wish to ban all employee drug use or merely impairment. Employers should be aware that the presence of THC (the active ingredient in marijuana) in the body may not indicate someone is presently impaired. While an employee may only feel the effects of marijuana for a matter of hours, THC can be detected for several days—or even weeks—if the employee is a frequent user.
- Make sure you have communicated your policy to all employees and clearly stated what is expected of them.
- Train your managers about confidentiality relating to sensitive employee information—including drug-test results and requests for accommodations for medical conditions for which marijuana is prescribed (especially under state law).
As more states pass laws about medical and recreational marijuana use, this area will only become more complicated. Employers should closely monitor developments in their states and be prepared to periodically remind employees of their expectations and requirements.
Another way to address marijuana and other drug related issues is to focus on “Total Health Management” that integrates both human resources and risk management within a more holistic framework. This focus on “Total Worker Health” enables organizations to both create optimal work conditions and advance worker wellbeing. The CDC (Centers for Disease Control and Prevention) defines Total Worker Health as “Policies, programs, and practices that integrate protection from work-related safety and health hazards with promotion of injury and illness prevention efforts to advance worker well-being.” This approach has gone beyond standard healthcare, introducing weight loss, fitness, smoking cessation, stress reduction, pain management programs, and more. These expanded wellness programs have been shown to reduce medical costs and absenteeism, improve morale, increase productivity, and reduce the frequency and severity of workers’ compensation claims.
Pain Management and Pain Mitigation Program
Companies may adhere to 0% tolerance of banned substances but it can offer alternatives that might address the reasons an employee is medicating with marijuana or other drugs as well. Many companies find it cost effective to offer Pain Management and Pain Mitigation Programs. These treatments can work in conjunction with healthcare, or when traditional medication is ineffective. These programs may better address the underlying cause of pain rather than masking it with drugs. Musculoskeletal pain accounts for one-third of the healthcare claims in the U.S., and this category is one of the fastest growing. Hands-on deep tissue treatment therapy is proven to reduce and eliminate muscular pain and injury in workers.
DORN provides highly skilled manual therapists to work at a place of business and fix painful muscular conditions. Through training of body mechanics, stretching and injury prevention techniques future injuries are often prevented. DORN provides highly skilled professional therapists, data analytics, and quick, safe, inexpensive, OSHA non-recordable treatment, all on-site at the workplace. And by reducing pain, additional associated benefits include reduced workers’ comp claims, improved sleep, reduced anxiety and stress, and better well-being. When pain is addressed utilizing the effective DORN therapy, the need to use medication, including marijuana, can often be reduced or even eliminated.