Jul 18 Marijuana & Workplace Safety
State legalization of marijuana for medical and recreational use continues to cause a stir. The increasing presence of marijuana in the workplace challenges businesses, because it’s a new risk yet to find its way into policies and procedures.
As marijuana begins to impact the workplace, businesses need to prepare. Even though it may be legal at the state level, it still brings significant business risk.
There’s little debate on whether or not marijuana causes impairment. The National Institute on Drug Abuse states marijuana affects the brain and can influence memory, thinking, concentration, movement, coordination, and sensory and time perception. Obviously this is a huge concern for companies as it can affect performance, safety, and even absenteeism.
However, the question is how much marijuana is too much. It’s basically the same debate authorities had decades ago with alcohol. The strength of the marijuana, a person’s body weight, how quickly they use the drug and how many times, and how they consume it all affects the level of the active ingredient, THC in their bloodstream.
Some businesses and legal authorities do not permit marijuana at all because of these ambiguities. Others will accommodate medical marijuana use under certain conditions.
Companies need to consider how off-duty marijuana use could affect safety and their degree of concern in each job position. Job descriptions should provide all responsibilities and duties, particularly those relating to safety.
If the applicant uses medical marijuana, an employer may be legally bound to accommodate them unless the job description or the company accommodation policy excludes them. Employers should consult the Americans for Disabilities Act (ADA) and discuss the legalities of an accommodation policy with their legal counsel.
Managers and supervisors need training to recognize a marijuana-impaired employee. They also need specific methods to record their observations and how they should proceed if there’s a problem. This is especially important for workplace accident reports.
Companies need to describe the precise procedure the supervisor or manager needs to take, such as ordering a test to verify impairment. They must make employees aware of these procedures and the consequences of a failed test if your company chooses to use one.
If a company chooses to test employees, they need to explain the test to the employee, what the results indicate, and the chain of events that follow if employees fail.
Theoretically, an employee could test positive when they used marijuana off-duty for medical or recreational purposes. Consequently, the presence of marijuana does not necessarily constitute impairment. Legal counsel and consultation with HR professionals is highly recommended before making a decision and, because of these complexities, some companies choose not to test.
Currently, many employers require potential employees to take a drug test before hiring, but the state controls whether you can test employees in the workplace. Testing methods include blood, urine and hair samples.
Several marijuana impairment testing mechanisms scheduled for release this year may provide marijuana levels immediately, much like a breathalyzer detects alcohol. These could provide immediate verification of the presence of marijuana in the bloodstream, even if an employee is driving or away from the workplace. At present, the only method available is saliva testing and it is not reliable.
An alternative to taking physical test samples is “psychomotor testing.” It can quickly and objectively screen job applicants and detect impairment.
These computerized tests identify a person’s ability to reason, perform complex fine and gross motor movements, reactions, and concentration. They’re especially valuable for equipment operators and drivers and less invasive than standard drug tests.
Businesses should develop a specific policy regarding marijuana. Even if your state legalized marijuana, you can still ban the drug at work and some states permit employee termination after a positive drug test.
A clear policy available to all managers and employees provides direction and lets employees know that, even when marijuana is legal in the state, it does not mean they can use, possess, or be under the influence of marijuana, while at work.
Check with state authorities regarding the legalities of drug testing and review marijuana legislation and employee rights with legal counsel. Marijuana laws are relatively new and frequently challenged.
Federal laws can impact policy too. Certain federal contractors must comply with the Drug-Free Workplace Act of 1988 which includes employee education.
Marijuana is a new risk, rarely included in policy language today. However, the insurance industry is watching events unfold as claims trickle in related to the drug and the insurance industry will undoubtedly modify their policies. Meanwhile, businesses must rely on existing policy coverage for their needs.
Very few cases relate to business so far, but this will change. One auto insurance case in Arizona clearly demonstrates the challenges a business might face if they thought an employee was driving under the influence of marijuana.
Arizona has a zero-tolerance law for marijuana while driving, but the driver had a medical license. The court ruled he could be exonerated if he could prove he was not impaired. However, no clear cut limits exist to determine what constitutes impairment so the law was open to legal and scientific challenge. The Supreme Court eventually overturned the DUI and placed the burden on the prosecution to prove impairment.
If the driver was involved in an accident while driving for a business, the business could have ended up in an expensive court case by no fault of their own. Having a comprehensive corporate policy prohibiting marijuana in place might provide the business with the protection they need, but they would still need proper coverage to protect them from liability and to compensate them from legal fees.
Another important consideration is medical insurance claims. Typically, impaired employees do not qualify for Workers’ Compensation medical expense coverage. Medical marijuana is not an FDA-approved treatment, so many insurance companies don’t recognize it as a valid, effective treatment if an employee chooses to use it instead of conventional drugs.
Since marijuana laws are so new, companies need to take special precautions to protect their assets and employees. Gilbert’s Risk Solutions has provided valuable advice and analyzed business risk since 1854. Marijuana is a new challenge, but we follow legislative news, pertinent court cases, and recommended insurance best practices.
Managing business risk includes protecting directors, officers, employees, data, and physical and intellectual property. We have the experience you need to protect what matters most. Contact us for a free consultation and don’t leave your business to chance.