Whether for recreational or medical purposes, marijuana use is rising across the country. The legalization of marijuana in a growing number of states has left employers concerned about the impact the new marijuana laws will have on their businesses. Business owners must now ask:

• How will marijuana use impact workplace safety?
• Can I be sued for discrimination if my organization’s drug use policy doesn’t align with an employee’s medical marijuana use?
• How do I create an effective workplace drug policy?
• How will legalized marijuana use impact the organization’s bottom line?

The Cannabis Controversy

According to Christine Clearwater, President of Drug-Free Solutions Group, the legalization of marijuana doesn’t mean employers must adopt more lenient drug policies. Clearwater, who specializes in substance abuse in the workplace, says the polarized discussion surrounding marijuana laws tends to overshadow statistics business owners should be aware of, which include:

• Car accidents involving marijuana use rose 300% between 2010 and 2013. This number is expected to rise as more states adopt laws legalizing the drug.
• Marijuana is a psychologically addictive substance.
• Today’s marijuana is 10 to 20 times stronger than the marijuana of the 1960s and 1970s.

Clearwater says business owners should put aside legal, moral, and ethical concerns when creating an effective workplace drug policy. Your drug policy is a business decision, albeit an important one.

How Will Marijuana Use Impact Workplace Safety?

THC, the active ingredient in marijuana, affects coordination, reaction time, depth perception, and other motor skills. THC can also cause sensory distortion. Operating heavy machinery, driving a forklift, or even transporting materials in a vehicle can be dangerous for someone under the influence of THC.
According to a study conducted by the National Institute on Drug Abuse, employees who used marijuana reported 55% more workplace accidents, 85% more injuries, and 75% more absences compared to employees who tested negative for the drug. A few other ways marijuana use can impact the organization’s bottom line are:

• Decreased productivity
• High turnover
• Lawsuits
• Increased unemployment benefit and Worker’s Compensation claims

Clearwater says employers should expect to spend about $7,000 per year (excluding unemployment claims and legal action) on an employee who abuses marijuana. With an estimated one in six employees having a substance abuse problem, a company with 500 employees can end up spending almost $600,000 a year on employees who abuse drugs. Employers must consider how their drug policy reflects on the organization as a whole.

State Statutes Provide Protection for Employers

While marijuana use among employees presents several legal challenges, most case law sides with employers who penalize or discriminate against workers who test positive for cannabis, even if the employee or potential employee has a medical marijuana card. In some states, however, like Illinois, Connecticut, Rhode Island and Maine, the case law sides with the employee. The state protects employees’ rights and safeguards against punitive action for medical marijuana use.
Marijuana is classified as a Schedule I drug, and it is still illegal. The drug has been deemed by federal law to have no accepted medical purpose and a high potential for abuse. Federal law supersedes state law.
Employers should be aware that:

• When dealing with a claim, it must be proven that the marijuana substantially contributed to the cause of the accident and the employer must have a drug policy and not have been aware of the use. Since THC can stay in the blood for as long a month after use, it’s hard to identify when it was ingested. It is very difficult to fight a Worker’s Comp claim where marijuana was found
• Most state health insurance will refuse to cover medical marijuana.
• The Americans with Disabilities Act sides with employers with respect to medical marijuana.
• Certain industries/organizations are required to abide by federal law, regardless of the states they are operating in.

Building a Sober Workforce

According to the Society for Human Resources Management, new state marijuana laws make finding workers who meet strict drug-screening criteria increasingly difficult. This has negatively affected employers in safety-sensitive industries, who are more likely to maintain zero-tolerance policies with respect to marijuana use. One such construction company located in Colorado has had to look out of state to find workers to test drug-free.
Marijuana is the most widely used illegal drug in the United States and the most frequently detected substance in workplace drug testing. In 2014, 6.8 million adults between the ages of 18 and 25 (19.6%) and 13.5 million adults over the age of 26 (6.6%) were estimated to have used marijuana. Having a solid workplace drug policy is the best way to keep your organization drug-free.

What is Included in a Good Drug Policy?

Studies show drug testing is effective at reducing employee drug use. An employee is three times less likely to test positive for a substance if they are tested regularly. Consider expanding the testing panel to include commonly abused prescription drugs to further protect your bottom line.
A good drug policy will also include:

• Support for employees who abuse drugs (i.e. drug assistance program, referrals to local resources)
• Clearly defined rules for drug use and possession
• Rules and procedures for post-accident testing
• Training and instructions for managers and anyone else who must enforce the policy
• Rules for handling an employee arrest or conviction

With the use of medical marijuana in a growing number of states, having each employee sign the drug policy you have in place, enforcing that policy and consistently reminding your employees of the expectations will help ensure you are doing what you can to avoid problems.