It may seem hard to fathom but, in 2022, marijuana is legalized for med­ical use in 34 states and the District of Columbia and 10 states plus the District of Columbia have legalized recreational marijuana use. Further, legalization efforts will continue as marijuana use in the United States in­creases. As such, what are employers to do when crafting drug-free policies and ensuring productive and safe workplaces? Unlike other drugs, mar­ijuana’s precarious position between legal (states) and illegal (federal) makes it different than other impairing substances.

Marijuana is Both Legal and Illegal in Most States

Despite the wide-spread wave of marijuana legalization in the United States, marijuana remains an illegal drug on a federal basis. The federal government has held firm in classify­ing marijuana or cannabis as a sched­ule I drug.

While marijuana is illegal at the federal level in the United States, the federal government has generally chosen not to prosecute those who possess and distribute marijuana in compliance with state laws. Thus, marijuana inhabits an in-between zone of legality: legal and illegal at the same time. While the federal govern­ment generally does not prosecute federal marijuana possession laws, it also does not budge on treating mari­juana as an illegal drug for purposes of oversight, distribution, federal disabil­ity law protection, etc. Further, federal requirements for drug-free workplaces still require that employees test nega­tive for marijuana along with other il­legal drugs. This places employers in a “no win” situation in trying to balance federal and state laws as well as limit­ing liability associated with workplace liabilities, worker’s compensation and productivity/quality expectations.

Marijuana – The Facts

The National Safety Council pub­lished the following statistics employ­ers should be aware:

• Car crashes involving marijuana went up 300% between 2010 and 2013, and they continue to rise as more states legalize the drug.
• Marijuana is 10 to 20 times stron­ger today than it was in the 1960’s and 70’s.
• Marijuana is an addictive drug.
• Employees who tested positive for marijuana had 55% more indus­trial accidents, 85% more injuries, and 75% greater absenteeism com­pared to those who tested negative.
• Employers spend about $7,000 per year on an employee who abuses drugs.
• About one (1) out of five (5) employees has a substance abuse problem.
• A statistic from SESCO’s em­ployee satisfaction survey reveals that an overwhelming amount of employees (over 90%) want and expect a safe place to work.

These facts surrounding marijuana use cannot be simply “ignored” by employers as the risks and liabilities associated are significant. Regardless of the “trends” of marijuana use, an employer’s priority must be on provid­ing a safe and healthy workplace for its employees, visitors and customers.

Best Practices for Employers – SESCO Staff Recommendations

Because marijuana inhabits the in-between zone of legality: legal and illegal at the same time, it is of utmost importance that all employers draft and communicate a compliant sub­stance abuse policy to include mari­juana. The Occupational Safety and Health Administration and National Safety Council both strongly rec­ommend employers’ policies should restrict marijuana use to the extent permitted by law. Employers need to consider compliance to and enforcing workers’ compensation, OSHA, DOT, drug-free workplace and other legisla­tion when drafting and communicating employment and substance abuse policies. Policy considerations need to include:

• Test for marijuana and THC, especially in safety-sensitive positions or when federal or state law requires, i.e. DOT, Drug Free Workplace, etc.
• Use a testing method such as Oral Fluid Testing, which indicates recent use as opposed to historical use.
• In states where medical marijua­na users receive protection from workplace discipline, policies should require employees to verify their medical marijuana authori­zation. Additionally, employers in these states should only take adverse action against employees where the testing takes place after reasonable suspicion of impair­ment.
• Managers and supervisors should be trained carefully on how to identify impairment and what to do when an employee is suspected of impairment on the job.
• Policies should contain a zero tolerance for marijuana use by employees in safety-sensitive positions.
• Employers should carefully con­sider whether or not to include ran­dom testing as part of their policy – be careful what you ask for.
• Policy should contain immediate termination where states allow and not provide for “multiple chances” as the recidivism rate is in excess of 90%.
• Always consider relevant state laws and cases.

SESCO will assist you in ensuring not only a compliant, but also an effec­tive substance abuse policy which will consider states who have implemented specific regulations. Please feel free to contact SESCO to review your current policy and/or to draft policy to ensure that your organization is prepared to address any issue which may arise in the workplace concerning substance abuse including marijuana.