Legalized Marijuana and Workplace Drug Testing: Challenges and Opportunities

Legalized marijuana is changing the way businesses manage their workforce. In this article, we will explore the big questions and provide options that can help companies navigate these uncharted waters.

Social and cultural attitudes towards marijuana are becoming increasingly favorable and accepting. Over half of American adults have tried marijuana at least once in their lives, and 22% of Americans (55 million) used marijuana at least once or twice in the past year. According to Yahoo News and Marist University poll, thirty-five million American adults use marijuana at least once or twice a month. According to Pew Research, 91% of Americans agree with the relaxation of marijuana laws, and marijuana has already been legalized either medically or fully in a growing number of states, 37 as of the publish date of this article.

This creates challenges for businesses, and in particular, businesses in safety-sensitive industries that have traditionally relied on zero-tolerance policies.

First, there is a general lack of clarity on managing the use of a drug that is legal at the state level yet still illegal at the federal level. Second, there is a lack of understanding about the level of impairment present at various stages of marijuana use and to what degree a drug test can reveal that impairment.

For workplaces committed to ensuring an alert and substance-free workforce, this brings challenges including:

  • Hiring: Workplaces find it more difficult to hire qualified candidates who can pass pre-employment drug screens, including THC.
  • Turnover: Workplaces are having to fire more workers due to increased THC positivity on random drug tests. Unfortunately, this often means dismissing highly qualified, valuable employees who are difficult to replace.
  • Morale: Workplaces are suffering from reduced confidence due to increased drug-related dismissals and the general incompatibility of workplace regulations with new cultural standards of marijuana use.

“More and more employers appear to be treating marijuana use like alcohol use and ignoring off-duty recreational use,”  says Anne-Marie Welch, an attorney with Clark Hill in Birmingham, MI. “She recommends that employers who decide to continue screening for marijuana mention their drug-testing requirement in job postings. This will help employers screen out candidates who can’t pass the test” (SHRM).

Some workplaces have chosen a more progressive approach, relaxing drug-testing practices. However, that choice is not without challenges. Additionally, the COVID-19 pandemic has put more pressure on workplaces relative to drug-testing policies because of the labor shortage it has created.

There’s a labor shortage in some industries due to COVID-19-related illnesses, unemployment subsidies, fear, and child care issues. As a result, employers are grappling with finding qualified applicants. Society for Human Resource Management.

One solution in many industries is using real-time impairment testing, such as Predictive Safety’s AlertMeter®, either as an entirely new option or in combination with traditional drug testing.

Workplaces can also utilize a medical review office, such as Cynergy MRO, to assess drug or impairment test results. With a third party reviewing cognitive impairment and drug test results, you can account for influential factors such as:

  • amount of cannabis in the system
  • employee medical history
  • currently visible impairment
  • physician attestation for medical marijuana users

These medical reviews are conducted via a quick telehealth visit and provide a picture of the employee’s current health and safety risk. Together, real-time impairment testing and the utilization of a medical review office can ensure increased workplace safety and reduced employer liability.

Click here to learn more about how AlertMeter® real-time impairment testing and Cynergy Medical Review Office can improve your workplace drug-testing program.

One of the biggest challenges facing all companies is establishing a workplace marijuana policy that retains quality employees and filters out those who are impaired on the job.

Consider the following story from Colorado:

Brandon Coats was 16-years old when the car he was a passenger in crashed into a tree. The accident left him wheelchair-bound with 80% of his body paralyzed.

Years later, Brandon secured a job as a customer service representative for DISH in 2007. Meanwhile, his prescription medicine for involuntary muscle spasms had grown less effective over the years. So, Brandon’s doctor recommended he try medical marijuana. He got his medical marijuana card in 2009 and found that it did alleviate his symptoms.

A year later, he was administered a random drug test. He tested positive for THC, and despite holding a medical marijuana card and never using marijuana while at work, was dismissed from his job.

In 2015, the Colorado Supreme Court ruled in favor of DISH, citing that although medical marijuana was legal in Colorado, it was still illegal federally.

Despite winning in the court, DISH lost a valuable employee that day. They also set an unsustainable precedent by disallowing hundreds of thousands of medical marijuana users from seeking employment within their company. (Westword initially reported this story.)

If this is such a contentious issue for non-safety sensitive positions, it is even more so for safety-sensitive industries that are even more pressed for skilled quality workers. 

At Predictive Safety, we believe companies must first look beyond a positive or negative result on a THC test and focus on the parameter that creates the risk: impairment. A positive drug test doesn’t necessarily mean that an employee is impaired at work, and a negative drug test doesn’t necessarily mean that they aren’t a safety risk, today, even if their last random test may have been negative.

One of the more concerning detrimental effects of marijuana use is a potential reduction in reaction time.

In a safety-sensitive industry, if a worker’s reaction time is diminished, a lot can go wrong very quickly. In the Exxon Valdez oil spill, the third mate in charge of steering the vessel away from a reef did not respond quickly enough when instructed to start maneuvering. Although the reason for the delayed reaction was never definitively identified (sleep deprivation may have played a role), the delay resulted in one of the largest industrial and environmental disasters in modern history.

Every day, truck drivers must react quickly to avoid potential accidents due to other drivers or obstacles on the road; construction workers must react quickly to assist a coworker in danger; manufacturers must react quickly to turn off malfunctioning equipment… what risks are your workers in need of being able to quickly respond to?

The effects of marijuana on reaction time are still being studied. However, existing studies tend to conclude that reaction time is significantly impaired when under the influence of marijuana, and that the higher the dose of marijuana, the greater the impairment.

“Experimental data show that drivers attempt to compensate by driving more slowly after smoking cannabis, but control deteriorates with increasing task complexity. Cannabis smoking increases lane weaving and impaired cognitive function. Critical-tracking tests, reaction times, divided-attention tasks, and lane-position variability all show cannabis-induced impairment. Despite purported tolerance in frequent smokers, complex tasks still show impairment” (Hartman, 2012).

How does marijuana use affect vigilance and attention? 

The effects of marijuana use on vigilance and attention have mostly been studied within the context of adolescent attention span and schoolwork. However, vigilance and attention are also extremely important when considering the daily routines of a safety-sensitive worker.

Many 24/7 operations, 911 operators and emergency dispatchers, security personnel such as prison guards, must sustain a high level of vigilance even when work is monotonous or slow. Their ability to stay vigilant and focused through long, night shifts is extremely critical.

Whether due to fatigue or cannabis, it is imperative that workplaces are aware of the risks caused by impaired attention and vigilance at work.

The AlertMeter® cognitive impairment test can help supervisors and managers know, in real-time, when a worker is impaired and lacks sufficient vigilance and attention span to safely perform their job.

If a worker cannot score within his normal range of alertness on this 60 second test, he may be too impaired to work. The test does not identify the cause of impairment–cannabis, fatigue, stress, alcohol, etc.–so whilst protecting worker privacy, the test provides an accurate assessment of cognitive detriment due to any cause.

Workplace Drug Testing Policy and Legalized Marijuana

Even though marijuana has been legalized in many US states, most safety-sensitive workplaces still have zero-tolerance policies for marijuana and other drugs. Depending on the industry and where the company is located, workplaces utilize a variety of testing methods for marijuana.

Since THC can linger in the human system for 3 weeks or longer, many workplaces wonder if it makes sense to fire an employee who received a positive result on a random drug test, but who has never had issues related to impairment while at work.

If you are one of the many companies we’ve spoken to who share this concern, consider the following testing methods to better understand their strengths and weaknesses and identify areas for improvement:

Pre-Employment Drug Testing

Pre-employment drug tests that include THC testing may be effective if your goal is to exclude chronic or habitual marijuana users from your workforce. However, this may also include people who use medical marijuana to manage chronic pain/disorders and enable them to perform better at work than they could without it. An important factor to consider is that if a potential employee cannot abstain from smoking long enough to avoid a positive test result, they may not be able to abstain around work hours either.

Unless the use is for medical purposes, not abstaining may also indicate a general lack of concern on the worker’s part. If you are willing to hire a medical marijuana user who consumes in a way that does not impact their ability to work safely, you may utilize a medical review office to assess positive test results and provide physician attestation that the candidate is, in fact, medically required to consume marijuana.

Random Drug Testing

Random drug testing can be an effective method of deterrence and an effective way to enforce your zero-tolerance drug policy. However, its efficacy relies on being utilized frequently and in an unpredictable manner. This means workplaces must invest time and money to conduct these tests. If your workplace is in a remote location, this could become a real productivity killer.

If testing becomes too infrequent, workers will not be sufficiently deterred. On the other hand, testing too frequently may contribute to reduced workplace morale and higher turnover. Few workers like being told to urinate in a cup. Even fewer like it when they suspect that the testing isn’t “random” and they’re being singled out.

Post-Accident Drug Testing

There is a growing trend of positivity in post-accident drug tests. Statistics indicate that 78% of post-accident drug tests are positive for marijuana. However, it is important to consider whether this relationship is causal or correlational.

Is increased marijuana consumption causing more accidents?
Or are there more positive tests due to increased consumption outside of work hours, but without interference with work hours?

It is paramount to safety that workplaces are able to answer this question in their root-cause analyses.

A proactive option is to use real-time impairment testing before workers begin their shifts or undertake a critical task. Via a 60-second test, you can identify workers who may be impaired or struggling to stay alert. If, after speaking to the worker, you have reasonable suspicion that the worker is currently intoxicated, you can order a drug test and find out about marijuana impairment before it leads to an accident.

Reasonable Suspicion Testing

The success of reasonable suspicion testing relies largely on the confidence level of a supervisor or manager engaging with the employee demonstrating signs of impairment. Often reasonable suspicion goes unreported, only to be recognized later in the form of an incident or injury. Adequate training and communication skills are essential if you are relying heavily on reasonable suspicion testing.

Alternatively, you can enlist the services of Cynergy MRO, a medical review office who will conduct a quick telehealth visit with workers who are identified as potentially impaired by the AlertMeter® test.

The medical review office will be able to determine whether there is reasonable cause to order a drug-test, whether the employee requires medical attention, or if he/she can safely continue work. It’s a great way to reduce liability and increase confidence in your workers’ ability to work safely.

Cognitive Impairment Testing

As mentioned, one of the disadvantages of traditional drug-testing is its inability to identify impairment in real-time.

A drug-test is purely a measure of whether a substance was consumed at any time in the recent past, to the level that it can still be detected in the bloodstream, hair, or urine. The test provides no further insight about whether the worker smoked weeks ago or if they are currently cognitively impaired.

A cognitive impairment test fills this gap. It measures subtle differences in how a worker with an established baseline performs on tasks that measure reaction time, accuracy, vigilance, pattern recognition, and short-term memory.

If it detects significant differences in the worker’s performance on these tasks, it tags the worker as “outside normal range of alertness”.

This triggers a notification to a supervisor who then speaks with the worker to determine if there is an active safety risk.

Many times, the worker is fatigued, dehydrated, or stressed and needs a break, a snack, or a drink of water before they can resume work. Other times, the supervisor will conclude reasonable suspicion and refer the worker to HR or follow company protocols.

The AlertMeter® is the only accurate cognitive impairment test that can identify potentially impaired workers in 60-seconds. It is a simple, graphics-based test that all worker can take with ease regardless of age, technical skill, language, or education. Workers appreciate the fact that it is non-invasive and doesn’t violate worker privacy in any way.

FAQs About Marijuana and Workplace Drug Testing

1. What happens if a worker smokes on a Friday night and then gets a random test on Monday which comes up positive?

It depends on your company policy. However, one of the manufacturing companies that uses AlertMeter® (click here to hear their story) actually eliminated random drug testing for this reason. The company is located in Colorado, where marijuana is legal. The employee had smoked on the weekend and got random drug-tested on Monday. He came up positive and had to be fired per company policy. The employee had worked there for 20 years and operated really complex machinery. It took over a year to find another worker with the skills and qualifications needed to replace him. It also damaged morale since they fired one of their best and most loyal employees. The company decided to get AlertMeter® and totally ended their random drug-testing program, reducing drug-testing costs in the process. They are still able to maintain a zero-tolerance drug policy.

2. Can you use medical marijuana and still work in a safety-sensitive job?

One of the issues with legal marijuana is that unfortunately, medical marijuana cards are often not written by or monitored with regularity by a primary care physician. If someone is in a safety-sensitive position, the physician who signed off on the use should verify that the person with the card is able to perform their safety-sensitive job duties, and what restrictions on use would be applicable based on the condition for which the referral was given.

There is a gap in accountability for physicians referring to marijuana use for medicinal purpose. Data shows that medicinal marijuana, along with a number of other legal prescription drugs, does not fit well in an environment where there is a particular need for safety. A Medical Review Officer plays a key role in this area of accommodation vs. safety.

Cynergy MRO: “We recently instituted a medicinal marijuana attestation process for non-regulated drug screens. We can help you make the decision when you’re considering whom to hire, and under what accommodation practice. After that, you can use AlertMeter® as a daily process. If you utilize both services–a physician verifying the appropriateness of use before employment, and AlertMeter® to ensure daily fitness, you have a high level of risk mitigation in place.”

3. Isn’t cognitive impairment testing a bit invasive? How do we get the staff to take the test?

Would your employees rather complete a 60-second app test that seems similar to the device-based games that are popular or urinate in a cup?

There is nothing within the AlertMeter® app that requires private or sensitive employee information. Essentially, all the test does is prompt a quick conversation between a supervisor and a potentially impaired employee. What you do after that follows existing company protocol, exactly what you’re currently doing during a stretch and flex or another in-person exercise for supervisors to detect impaired workers. This is just a faster and more objective way of doing it. We have overwhelmingly positive feedback from workers and supervisors who have used this.

Thankfully, with the legalization of marijuana has come new and improved ways to detect worker impairment and improve workplace safety. Comprehensive MRO services for pre-employment screening prevent a catastrophic hire. Daily fit-for-work assessment tools like AlertMeter® create a culture of safety and trust among co-workers that they are in a drug-safe working environment.

The MRO ensures that the daily screening and application of policy are assessed fairly and equally across the employee population, giving supervisors and employees a high level of trust in the equity of the process. The partnership between the employer, the MRO, the technology, and the employees is a winning combination for your business.

Click here to connect with an impairment management specialist and discover if AlertMeter® is a fit for your workplace.

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