While ganja, pot, and 420 are popular slang terms used to describe marijuana, “gray” may gain wider usage, too, at least when it comes to talking about the drug’s legalization by states and the uncertainty it casts on workplace policies regarding testing and enforcement.
With more states legalizing cannabis for medical and recreational use, the right of employers to enforce a zero-tolerance work policy will be in flux, with courts deliberating whether or not state laws protecting disabled employees also shield their medical marijuana use. Gray areas abound because 34 states, as well as the District of Columbia, have legalized marijuana to some degree, while federal law still deems it an illegal Schedule 1 drug, like heroin. For now, federal disability discrimination protections do not apply to employees’ medical marijuana use.
But the Occupational Safety and Health Administration has left employers in limbo. OSHA ruled in 2019 that post-accident drug testing is retaliatory and unlawful—unless facts indicate that on-the-job impairment played a role in the accident. The Trump administration rescinded that rule, but OSHA has yet to create hard-and-fast guidelines regarding use and testing. As a result, companies are left to devise their own policies and enforcement.
“I would certainly never be the one on site administering any sort of field test,” says Scott Frankel, co-president of Frankel Building Group, a custom home builder in Houston. “I assume that would have to be handled by someone in law enforcement. If I went on a jobsite and saw someone impaired, I would demand they leave the site immediately. I would then contact the subcontractor they work for and send a written notice. I just can’t imagine anyone loosening up their workplace drug policy—because the liability is tremendous.”
Detection vs Impairment
So, how does one legally define and prove impairment?
Testing can detect the presence of THC (tetrahydrocannabinol), the main psychoactive compound in cannabis that affects motor skills and sensory perception. It can be detected as many as 30 days after use, and hair follicle testing can reveal marijuana use as far back as 90 days. But there is no widely available test to confirm impairment. An employee who used on his or her own time during the weekend and didn’t come to the job high or impaired, may test positive during the week in a random drug test. If the employer has a zero-tolerance policy, that employee could be fired.
Legal challenges to firings due to positive drug tests once were routinely dismissed, but some recent court rulings are applying the brakes to an employer’s ability to fire or discipline employees.
The Massachusetts Supreme Judicial Court ruled in 2017 that the commonwealth’s disability discrimination law can be used to challenge dismissal of an employee. The court found that the employer has a duty to “engage in an interactive process” to find opportunity for a reasonable accommodation. That legal rationale has since been applied to cases in Connecticut, New Jersey, and Rhode Island. Also, starting in January 2020, Nevada forbade employers from denying employment to an applicant based on a pre-employment drug test.
Zero Tolerance vs Discrimination
But there are some footholds for zero tolerance on this slippery slope. Courts in Washington, Montana, Colorado, and California have ruled that employers do not have to accommodate employees’ medical marijuana use. Some states have excluded safety-sensitive jobs, such as construction and transportation, from disability discrimination protection. Also, employers would have the opportunity, if they are sued, to show that an employee’s use of medical marijuana would cause an undue hardship on the business or a risk to public safety. But if impairment is the standard for dismissing an employee who uses marijuana, is a subjective field test sufficient to satisfy the burden of proof?
“As an employer, the biggest liability has to be impairment, and the only way you can tell it is from testing, so we have a no-tolerance policy,” Frankel says. “We’ve been lucky not to have to deal with something like that. We’ll continue to monitor things, but we’ll look to our employment attorneys, we’ll look to risk management consultants, and our insurance provider, and we’ll look to our human resources. It’s a touchy subject, but the priority is the safety of the people who work here, the safety of our people on site, the safety of our customers, and protecting people, I guess in some cases, from each other.”
Cannabis is illegal in Texas, but in states where it is legal, should a construction company soften its zero-tolerance policy? Should it continue testing employees and potential hires?
Craig Tappel, chief sales officer of construction practices for HUB International, an insurance brokerage, says the best drug testing programs are pre-employment, post-accident, and random. If an employer is going to have a robust testing program, it can’t only be used on workers who get injured; that could be considered discriminatory.
“A lot of companies are struggling with this—do I deal with marijuana the same way I deal with other drugs, from a safety point of view?” Tappel says. “You have to move away from being scared of a particular drug or a particular substance. You have to say, ‘I need to think of this in the same way I do prescribed opioids or any other pain medication that might impair a worker’s ability to work safely, to protect themselves and to protect their co-workers and the general public.’ Are they in a dangerous role and are they impaired? If they’re not, then I should be able to look back at my policy and ask, can I treat this substance the same way I do others? Should I make accommodations for medical [reasons]? It’s about safety and maintaining a safe work environment more than about ‘I’ve always maintained the zero-tolerance policy and I’ll just keep doing that.’”
Jay Virdi is chief sales officer for Hub’s cannabis insurance and risk services in the U.S. and Canada and has long been an advocate of insurance solutions for medical and recreational cannabis producers, distributors, and retailers. He does not sanction employees coming to work high or using while on the job. However, he contends there may be room for employers to understand why employees medicate with marijuana during off hours to control pain or treat disease symptoms, and the effect, if any, of this on work performance in the context of side effects from accepted pharmaceuticals.
“I think other factors need to be taken into account when determining if a person is compromised,” Virdi says. “You can do an eye test or a breath test for alcohol ... and maybe there are different ways to teach managers or HR to look at people after a positive test to determine if they are incapacitated. A positive test on someone who used cannabis days ago is not as dangerous as someone who is incapacitated from opioids or alcohol.”
Liability
Inevitably, there are builders and subcontractors that don’t have a written policy or, if they do, don’t pursue random drug testing because if someone on their team does test positive, letting that person go amidst a skilled labor shortage could set the builder back. Noelle Tarabulski, CEO of Builder Consulting Group, pressed a multifamily builder client in Denver to institute a zero-tolerance drug use policy and random testing. The client, who had equity stakes in more than 80 properties and $25 million in assets, hesitated because he didn’t want to dismiss a long-time employee with 25 years’ construction experience who used cannabis to manage pain.
Amid the many gray areas associated with the legality or illegality of cannabis, the only sure thing for Tarabulski is the likelihood of a post-accident lawsuit against a builder or contractor for allowing an unsafe situation if an employee who uses is injured on the job or if a fellow employee is injured by an impaired co-worker.
“This is a completely confusing scenario. The only piece of clarity is that if something happens, you, the builder, will be the fall guy,” Tarabulski says. “The end result is you can lose your entire company.”
Her client instituted zero tolerance and fired the long-time employee after he tested positive on a random drug test. “[The builder] felt bad, but I didn’t because [the employee] was on the edge of bad behavior,” Tarabulski says. “Builders have to protect themselves and their assets at all times. If you have assets, people are going to come after them. Have a clear drug policy and enforce it.”
Consult with an attorney to ensure your drug policy complies with state and federal laws.