Medical Marijuana and the Drug Free Workplace

An increasing number of states have passed varying laws regarding marijuana legalization and the use of medical marijuana.  At the same time, the federal government still maintains that marijuana use is illegal.  Businesses that operate under federal contracts or fall under the Department of Transportation still must comply with drug testing regulations, regardless of state laws.

Medical marijuana use is of special importance to employers, especially those who have a drug testing program in place.  Despite the legalization of marijuana in some states, it is still illegal under the Federal Controlled Substances Act, and until the federal government decides to work with the states, these contrary laws will continue to confuse employers.

Some state laws do not mention their effect on the workplace, while others such as Arizona, Delaware, Maine and Michigan include provisions that address marijuana and the workplace.  In states that allow medicinal marijuana, employers may still lawfully prohibit employees from using marijuana during work hours.

Recent State Supreme court cases in Washington and Oregon issued rulings as a result of court cases which confirmed that their state laws do not require employers to accommodate the use of medical marijuana under their drug free workplace policies.  In all cases, however, an employer must carefully research their state’s laws regarding medical marijuana use.  In some cases, an employer may make exceptions for medical marijuana use, but it must be an exception that is applied after a thoughtful consideration of all the safety and business risks involved and done in a manner in which the employer does not unnecessarily expose itself to potential claims for discrimination.

Even if an employer makes an exception for an employee to use medical marijuana outside the workplace, the employer also needs to keep in mind that it is under a duty imposed by the Occupational Safety and Health Act to provide a safe work place for all its employees. If the worker is in a safety-sensitive position, marijuana use is likely not a reasonable option. If the worker must be licensed in accordance with federal law to perform duties such as commercial driving, marijuana use is not an option at all.

Confusing? You bet!

Drug Testing potential employees and those who are already employed with your company is very important, and although drug testing is not a requirement under the Drug-Free Workplace Act of 1988 for most industries, it is recommended, and can be an integral part of your background check program. Drug use in the workplace costs employers over $100 billion dollars annually, reports the US Department of Labor. This can include costs from lost time, workplace accidents, health care and workers’ compensation claims. Instituting a drug screening program at your company will not only improve morale but it provides your employees with a better work environment. Employees with substance abuse problems call in sick more often, are frequently late, use more medical benefits, are less productive, increase the chance of accidents and liability and cause a stressful environment. Not to mention the strong correlation between substance abuse and crime, violence and theft.

With the prevalence of companies adopting drug testing programs, it would seem that drug use and positive test results would be declining, however, it’s quite the opposite.  Data from Quest Diagnostics Drug Testing Index indicated that positive drug tests for pre-employment purposes in urine drug screenings for the general workforce has increased by 5.7% in 2012 compared to 2011.

It’s also important to note that although both oral fluid and urine collections are highly effective, due to oral testing technology which was applied in 2011, the positivity rate for marijuana was 70% higher than urine testing. This is because when collecting urine specimens, the donor is unobserved which could allow adulteration of the specimen more easily than oral fluid collections.

Medical Marijuana MapData from the Drug Testing Index also indicates trends with the most popular drugs. A continuing trend is marijuana as the most commonly detected drug on drug tests within the general workforce, accounting for 2.0%. A study from the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) reports that an estimated 7% of Americans used marijuana in 2011, up from 5.8% in 2007. The second most commonly detected drug is amphetamines which make up for .86% of tests.

The second most commonly found drug in positive drug tests, amphetamines, has shown an increase in positivity rates from 2011. Positive tests in urine samples show an increase of 11.7% from 0.77% in 2011 to 0.86% in 2012.

Reversely, the Drug Testing Index also reported that cocaine use has decreased. According to oral fluid drug testing, the positivity rates have gone down 14.6% from 2011. This emphasizes the downward trend in cocaine use in recent years.

In order to help mitigate safety, legal and regulatory risks, it is vital for employers to carefully

As the courts continue to update laws on medical marijuana, Human Resource departments will need to obtain guidance from local attorneys that specialize in labor laws to create drug policies that protect both their business interests and the rights of their employees.  Stay tuned to Crimcheck.com as we continue to update you as laws and legislation are created for various states.

This post was written by Brett McIntyre, at Crimcheck.