Twenty-seven states have legalized the use of medical marijuana to some degree.

This poses a significant challenge for all workplaces, but particularly those where physical impairment may lead to injuries and illnesses. Until recently, many employers utilized random drug testing to enforce anti-marijuana use policies. However, with the expansion of medical marijuana reform, that enforcement method could be a violation of employee rights. 

A new peer-reviewed article by Lori A. Schroth (CSP, CET, CHSP), Brandon J. Hody (CSP, CHSP), Christopher S. Chaffin (CSP), Elliot Laratonda (GSP, OHST) and Greg W. Cook (CSP, CHMM), titled “Medical Marijuana: Addressing Impairment in the Workplace,” provides guidance on how organizations can address medical marijuana use in light of evolving laws. The article acknowledges that employers must consider such guidance on a case-by-case basis, since workplaces have unique needs and face different regulatory challenges. Despite the fact that the U.S. Department of Justice deferred marijuana enforcement to each state in 2013, the article says organizations should be wary of state laws regarding marijuana use. Safety professionals should prioritize workplace safety and health, while protecting employers and employees through the lawful execution of their drug policies.

That may sound simple at first, but anyone with boots on the ground knows that balancing those two priorities can feel daunting. Schroth et al. say the first step is to examine the safety and health implications of marijuana use in your workplace. In a recent study conducted by the National Institute on Drug Abuse (NIDA), employees who tested positive for marijuana experienced 55 percent more industrial incidents and 85 percent more injuries than those who tested negative. Safety professionals may also want to evaluate the research on how marijuana impairment affects productivity and business operations, the article says. According to the same NIDA study, marijuana users are known to be tardy to or absent from from work 75 percent more often than nonusers.

Once safety professionals have worked with their organizations to determine whether medical marijuana use presents a significant safety and health hazard, the authors recommend adding these five elements to their policies. 

1. A Strategy

Organizations should ask themselves which steps they need to take to mitigate the risk of impairment due to medical marijuana use at work. The article suggests that companies create a team of professionals qualified to create a basic strategic framework addressing this issue. This framework should specify whether it makes more sense to ban the use of medical marijuana or restrict its use with enforceable guidelines and accommodate employees as needed.

When subject to work duties, banning marijuana use is typically a safe and responsible policy, the article says. This is, in part, because marijuana is illegal at the federal level, and any use or possession is a crime at federally governed organizations, regardless of state laws. While regulations are different across state lines, federal law allows all employers to prohibit the use of medical marijuana on the job.

The second option, allowing medical marijuana in the workplace with certain restrictions, raises more questions for safety professionals. If medical marijuana is legal in the state in which a company is located, employees may feel they are entitled to use the substance off-duty as prescribed. However, as employer policies can trump state laws, it is critical to make the company’s expectations clear to employees. Employers must also keep in mind that they are obligated first and foremost under federal law to identify hazards and take proactive steps to minimize employee exposure to those hazards.

2. Words on a Page

Simply put, a policy is incomplete until it has been written down. This process is likely to take a long time, the authors advise, and requires a comprehensive understanding of state and federal laws. Organizations should review written policies at least once each year, and revise them if there have been legislative or company-driven changes. Among other things, these written marijuana policies should include:

• Rules for workplace drug use and possession
• Guidelines for medical marijuana use outside of work hours
• Drug testing methods

Some companies may choose to establish separate written policies for employees in safety-sensitive positions who are responsible for the safety of others or who conduct high-risk jobs. Restrictions are usually tighter in these instances, and testing is often more frequent. Marijuana policies for safety-sensitive roles also typically mandate employee reporting of any medical marijuana recommendations.

3. A Medical Marijuana Accommodation Strategy

If organizations decide to permit medical marijuana use under certain circumstances, it may be a good idea to write a medical workplace accommodation policy as well, the authors suggest. Employees are usually required to report changes to the product, dosage, frequency, scheduled use or route of administration they are prescribed. Applying these policies consistently helps employers prevent discrimination. The article says these rules often include:

• The responsibilities of all parties involved in the employee’s marijuana use
• Physician documentation of the employee’s medical condition(s)
• The schedule of use in comparison to scheduled work hours

When employees submit information about their medical marijuana prescription or use, employers should take steps to verify its accuracy. In these cases, companies may even want to designate a medical review officer (MRO) to review accommodation requests and drug test results.

4. Enforcement and Education

To enforce a medical marijuana policy that addresses worker “impairment,” organizations must define what that means for their teams. According to a 2016 article published in the Journal of the Missouri Bar, reasonable suspicious for impairment include “observational specific, articulable appearance, speech, body odor or behavioral indicators of alcohol use.” Companies need to train managers, supervisors and employees on this critical definition. They also need to understand how to follow all aspects of the organization’s medical workplace accommodation policy, if one exists.

Documentation is another key aspect of medical marijuana policy enforcement. In addition to consistently documenting medical marijuana use, supervisors and HR personnel should keep records of employee marijuana impairment or abuse. Results of drug tests can also be included within this record keeping system.

5. Drug Testing and Outreach

Companies usually conduct drug tests before hiring a candidate, upon reasonable cause and after an incident. Before testing, supervisors and HR personnel should take care to avoid violating employee rights. While mandatory drug testing is legal after an incident, the Occupational Safety and Health Administration (OSHA) says it may also be discriminatory in situations where drug use could not have been a reasonable basis for what occurred.

It may be beneficial for an organization’s HR team to develop an employee assistance program (EAP) to help those struggling with marijuana abuse. EAPs can provide resources to employees who self-report a problem with marijuana that help them recover. Under Executive Order 12564, federal employees who test positive for illegal substances may keep their jobs if they enroll in an EAP, the article says. EAPs have also been successful when used in the private sector.

Read the complete version of “Medical Marijuana: Addressing Impairment in the Workplace,” which originally appeared in the August 2018 issue of Professional Safety. Want to receive a monthly subscription to Professional Safety, ASSP’s top-ranked benefit? Become an ASSP member.

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