More states legalized marijuana in the last election, with the states of California, Nevada, Maine and Massachusetts, joining early adopters Washington, Oregon, Alaska and Colorado in legalizing adult recreational marijuana. Washington, DC also legalized the use in 2015.
In addition many states expanded or voted to approve the use of medical marijuana. According to the Marijuana Policy Project, a pro-legalization group, medical marijuana is legal in 29 states and Washington, D.C., Puerto Rico and Guam. More states are expected to vote in favor of legalized marijuana in 2017.
According to Tamara Cagney, the president of the Employee Assistance Professionals Association, the important focus for Employee Assistance professionals is that marijuana remains a Schedule I drug under the Federal Controlled Substances Act, which means that it is neither lawful to use or possess as a matter of federal law. None of these new legalization efforts aim to change state employment law, employers in the affected states will no doubt be faced with a chorus of questions about how the changes will affect enforcement of their workplace substance abuse policies. If you have concerns about how this impacts your company policies, contact an employment attorney with knowledge about drug testing policies.
If you are a current client with employees who test positive, the EAP can help with a Return to Work Agreement, assessing and referring employees for treatment if needed, and monitoring them for up to two years. If you would like more information about drug testing in general, contact us at 1-800-648-5834 or locally at 425-454-3003.
A couple of months ago, Fully Effctive Employees held a free one hour seminar on Medical Marijuana and the Workplace in Bellevue, Washington. We invited guest speaker, Laurie Johnston, an employment attorney and partner at Gordon and Rees, P.S. to speak about the State law which was passed by the Supreme Court of Washington in June 2011, referring to the Medical Use of Marijuana Act (“MUMA”). MUMA does not require private employers to accommodate an employee’s off site use of medical marijuana. The Court further held that MUMA does not create a public policy that would support a claim for wrongful discharge. What this means is that employers CAN terminate an employee who tests positive for marijuana even if it is used for medical purposes.
What this means is that employers CAN terminate an employee who tests positive for marijuana even if it is used for medical purposes. While medical marijuana is readily available and many
employees are using this option to argue the cause for a positive drug test, it is still an illegal drug according to Federal law and if an employer does have a drug testing policy, the employer is not required to accommodate for this drug. There is no legal prescription for medical marijuana- a letter from a doctor or what is commonly referred to as a “green card” just states that an individual can use a certain amount for a particular diagnosis which can range from chronic, severe pain to minor skin ailments or anxiety. Marijuana is not approved by the FDA because it cannot be regulated and the carcinogens from the smoke and other additives cannot be evaluated as medically safe.
Laurie Johnston advises that it is wise to treat all employees the same, regardless of whether or not they work in a safety sensitive position. If an employee who works in a “safety sensitive position” tests positive for marijuana due to “medical reasons” refuses to cease use, an employer should treat him that same as someone in a desk job, even though safety may not be an issue. Ms. Johnston pointed out that if the employer asks the employee in the desk job to run an errand during company time and that person gets into an accident and it can be proved he has marijuana in his system, there could be liability for the employer. In addition, there may be other protected class or discrimination claims. Ms. Johnston recommends that if an employer chooses to keep an individual who uses medical marijuana solely because the position he works in is not a safety risk, there should be clear policy and documentation to that effect. The employer may be subjecting itself to increased risk and the potential for lawsuits by other employees.
It should be noted that marijuana stays in a person’s system for a long time and someone who has been using it for a while may have to be off of work for up to thirty days until it no longer shows on a drug test. Due to the cut-off levels that the lab uses, trace amounts of the drug can show up but not be considered a positive drug test, therefore “passive inhalation” or second hand smoke would not create a positive drug test. In addition, if the employer is using a SAMSHA certified lab (which they should use) rather than instant tests purchased on line or at a drug store, any substance that one ingests to “pass the test” will result in an “adulterated” sample which would be considered a positive. This is no way to “beat” a drug test if the test is done properly.
While there may be legitimate situations in which medical marijuana is an appropriate option for a physically ill person such as someone who is suffering from a terminal disease or severe pain. In these situations, the person would not be in the workforce or causing a safety risk to himself or others. If employers choose to drug test, they should be aware that they will eventually have an employee who tests positive for medical marijuana and a clear policy and training of all personnel is vital.
We will disucss how the EAP works with employees who test positive for drugs in another post. Stay tuned!
If you have questions about drug testing in your workplace, feel free to contact us.