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As an employer what can you do to maintain a drug free environment in the midst of states adopting laws legalizing marijuana? This article covers the multiple areas related to marijuana use and your rights as an employer to maintain a drug free environment.
Marijuana is still considered a scheduled 1 controlled substance:
- Possession, use and sale is still illegal
- State laws do not supersede federal law
Federal courts have not taken action against medical marijuana users to date. From a federal law standpoint, even medical marijuana is illegal. Federal employees, contracts, and anyone receiving federal contract money must operate in drug free environments, including marijuana.
US DOT Employees
Drivers under US DOT regulations must be 100% drug free and are subject to drug testing to include: pre-employment, post accident, reasonable suspicion, random, and return to duty/follow-up.
- 21 states still make use of marijuana illegal: ID, UT, WY, ND, SD, NE, KS, MN, MO, IN, OH, KY, MS, TN, WV, VA, MD, NC, SC, VT, and RI
- 19 states make it legal only for medicinal purposes: MT, AZ, NM, OK, AR, LA, WI, MI, IL, IA, NJ, NY, CT, PA, GA, FL, HI, DE, and NH
- 8 states have legalized marijuana use: WA, OR, CA, NV, CO, MA, AK, and ME
- 2 states allow use of CBM (cannabidiol – a relaxant) for medicinal use only: TX and AL
- 6 states voted to legalize its use in Fall 2018: AZ, VT, MI, NJ, CT, and MO
- A “yes” vote in Michigan this November (2018) would do the following:
- Allow anyone 21 years of age or older to possess up to 10 ounces of marijuana at home
- Purchase 2.5 ounces at any time, and grow up to 12 marijuana plants
General Marijuana Facts
Definition and common terms associated with marijuana:
- Marijuana is a cannabis plant that is harvested for its euphoric, psychoactive, properties. It contains THC (Tetrahydrocannabinol), which causes the euphoric effect.
- Cannabidiol (CBD) is non-psychoactive and is known as a muscle relaxant. When used for medicinal purposes, the oil must contain less than 3% THC.
Largest % of users in the USA are the 18-25 age group.
64% of the population feels that marijuana should be legalized.
Zero drug policy can still be enforced on jobsites, even in states where marijuana is legal.
What to look for at work?
Managers need to be trained to recognize the various ways Marijuana can be used:
- Smoking – most common source of marijuana use
- Vaporizers – come in small sizes and can easily be hidden in purses / pockets
- Edibles – time it takes to be effective is longer, however the effect is stronger. Peak effects occur within 2 hours of consumption, first symptoms can be seen within 30 minutes of consumption
- Tinctures – (liquid form of MJ, that can easily dissolve on your tongue) – effects can be realized from 5 – 15 minutes of injestion (just a few drops on the tongue needed to create effect)
- Nasal Sprays – basically tinctures in a spray form
Symptoms of marijuana usage includes the following:
- Dilated pupils, Bloodshot eyes, red puffiness under the eyes
- Reduced motivation, difficulty thinking
- Distorted sensory perceptions, impaired judgement / short term memory
- Reduced coordination
- Temporary feeling of reduced anxiety / stress
Managers should be trained on what to look for and company policies in place related to marijuana and other drug use.
Managing drug programs in the workplace
Marijuana accumulates in body fat and will stay in your system longer than most other drugs. The euphoric high is usually temporary and dissipates often within hours of consumption.
Marijuana testing and their effectiveness (how likely are you going to get a positive test):
|Sampling Technique||Average time that drug remains in your system|
|Single Use||Frequent Use||Regular / Heavy Use|
|Blood||24 hours||3 days||1 week|
|Urine||8 days||8 – 15 days||15 – 45 days||45-75 days|
|Hair||Can stay in system for up to 90 days|
|Saliva||24 hours||72 hours||1 week|
Other drug detection effectiveness (blood sampling)
- Amphetamines – can be detected up to 2-3 days
- Alcohol – detectable up to 5 days
- Cocaine – detectable up to 2-10 days
- Opiates (including Heroine) – detectable up to 2-5 days
Drug testing policies should contain text advising employees of the following:
- Inform employees when and why drug testing may be required and what are the consequences from a positive drug test
- Clearly define what substances are prohibited
- Clearly state that medical or recreational marijuana use on company property or at work is prohibited
- Prohibit the manufacturing, distribution and selling of illegal substance on company property
- Failure to cooperate in a company investigation of substance abuse may result in disciplinary action
- Refusing to submit to a requested drug test could result in disciplinary action
- Advise employees that the company reserves the right to search personal property (desks, lockers, vehicles, etc.) while on the company premises subject to federal, state and local laws
New correct response for drug testing policies in the workplace: “We conduct post-incident drug / alcohol testing only when the incident / occurrence may be due to the worker being under the influence of prohibitive substances or alcohol.”
Pre-employment, reasonable suspicion and random drug testing are still allowed. It is at the discretion of the employer. On Federal sites, you need to test to meet the 100% drug free environment.
The Whistle Blower OSHA rule
You can not retaliate against an employee for reporting an incident including automatic drug testing or disciplinary action. A blanket drug testing policy (ie: testing for all incidents, regardless of any indication that drugs may have been a contributing factor) would be a violation of the act. Reporting injuries and near misses should continue to be encouraged. Reward programs need to steer away from being tied solely to frequency of incident reduction.
Post incident drug testing can be performed if:
- There is suspicion that drugs contributed to the incident AND
- The test can determine that the drugs were in the system at the time of the occurrence
As an employer you still have the right to mandate a 100% drug free workplace, and test accordingly. Federal sites / contracts continue to treat marijuana as an illegal drug and mandate 100% drug free environments. If you work in a state that has passed recreational or medicinal use laws, you still have the right to have drug free work environments and are required to maintain such environments if you receive any federal money. DOT regulations still mandate subject drivers be 100% drug free and testing can be done to ensure these parameters.
The only area that you can not automatically test for drugs, would be in a post accident scenario. You can only drug test post accident if you have suspicion that drugs contributed to the incident and the test confirms that drugs were in the workers system at the time of the incident.
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