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State marijuana laws, opioid use and your workplace drug policy

Resources | October 1, 2018 | By:

What do business owners need to know about changing state marijuana laws and opioid use?

With the U.S. unemployment rate at its lowest in years, employers are struggling to fully staff their companies. If that wasn’t difficult enough, employers who operate in states that have legalized marijuana face additional challenges in finding workers who can pass drug tests—especially employers in industries such as tent rental, which requires drivers and operators of
heavy equipment.

Prescription drug use—particularly opioids—presents additional obstacles.

Nine states and the District of Columbia have legalized both recreational and medical marijuana, and an additional 20 states have legalized medical marijuana. Yet, marijuana remains illegal under federal law, setting up clashes between federal and state laws.

As information manager for the Denver, Colo.-based Employers Council, an organization that provides its members with expertise in employment law, human resources, training and surveys, attorney Benjamin Hase is fielding more and more questions about drug use in the workplace. Hase says that state marijuana legalization in particular presents a few complexities that employers need to be aware of—especially businesses that operate in multiple states.

“In the past we’ve looked at employment law at a federal level,” Hase says. “Over the past five to 10 years, that has changed. A lot of things are now legislated by the states, and marijuana is the poster child of state legislation.”

Marijuana laws

First, employers need to understand the distinction between recreational marijuana and medical marijuana. Employers can choose how they treat recreational marijuana use by employees, even in states where it is legal, Hase says.

“At this point, nowhere is there a constitutional right to use recreational marijuana that is so strong that it would prohibit an employer from not hiring someone for testing positive,” he says. “So recreational marijuana is actually the less complicated of the two.”

In most states that have legalized medical marijuana, employers may still drug test for it and disallow employees from using it, Hase says.

“But there are some states like Arizona that require you to accommodate medical marijuana use if it’s used for a disability,” Hase says. “It does require employers to have their finger on the pulse of the states where they do business. If you do business in 12 different states, there may be two or three different rules out there for how you have to treat people with medical marijuana.”

Employers in states that have legalized marijuana may be tempted to stop drug testing for it, especially employers who desperately need employees.

“That’s tricky too,” Hase says. “Let’s say you test for cocaine and amphetamines and other things but you don’t test for marijuana. Well, now you have people working potentially under the use of marijuana, so you are implicitly condoning it. What if those people get into a wreck? What if they hurt somebody?”

Hase works with employers on an individualized basis to determine the right balance between sufficient staffing and necessary drug testing of employees—but he admits finding that balance isn’t always easy.

“Somebody sitting in an office doing data entry can probably smoke as much pot as they want without creating a big risk for you,” he says. “But somebody who is out there operating heavy equipment or driving around should be tested.”

Opioid use

The opioid epidemic is another challenge for employers because federal and state disability laws protect employees taking prescription drugs for valid medical conditions.

“The Equal Employment Opportunity Commission has been looking for cases where employers have terminated someone who is using medication that is legally prescribed, and a lot of those prescriptions are opioids,” Hase says. “So there we have to tread very carefully.”

When a business is faced with an employee using opioids, the first step is to determine if the employee has a legal prescription and if the person is using the drug as prescribed, Hase says. The next step is to get an opinion from a health care provider as to whether or not the employee is safe to perform functions such as operating heavy machinery while on that medication.

“Let’s say we ask the employee to get something from their doctor that says, yes, Joe is okay to drive this truck even though he is using Percocet,” Hase says. “If something happens, we have documentation from a health care provider who told us this was okay. It’s not our negligence. We did our best to see that this person was safe—we just got that advice from someone else. That person is negligent, not us.

“If we don’t take that extra step, if we just say, ‘Well, you have a prescription, you are using it legally, go ahead and do your job,’ and then something happens, now we might be on the hook,” Hase adds.

Hase recommends that employers require disclosure of prescription medications including opioids and medical marijuana by employees who operate heavy machinery. Then, if an employee does not disclose and an accident happens, the employer has at least a limited defense. Workplace policies should lay out a process for reasonable accommodation for employees who use prescribed opioids, he says. This also applies to medical marijuana in states that require accommodation.

“Some expression that you are willing to accommodate is important,” he says.

A few absolutes

As long as marijuana use remains illegal under federal law, there are a few absolutes for workplace drug policies.

The Drug-Free Workplace Act of 1988 requires certain federal contractors and all federal grant recipients to maintain drug-free workplaces. And the U.S. Department of Transportation’s drug and alcohol testing regulation does not consider medical marijuana use under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

Finally, Hase recommends making absolutely certain that if you do business in more than one state, you know the law in each state.

“We see this not only with marijuana and drug use, but all kinds of employment law issues with employers getting it wrong,” Hase says. “When people say, ‘Oh, I’m in Denver, I’m going to issue one policy for everybody around the country—now we have 49 compliance issues. Make sure you keep up with each state’s laws.”

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