Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers: Joint Guidance Statement of the American Association of Occupational Health Nurses and the American College of Occupational and Environmental Medicine

Jennan A Phillips, Michael G Holland, Debra D Baldwin, Linda Gifford-Meuleveld, Kathryn L Mueller, Brett Perkison, Mark Upfal, Marianne Dreger
Workplace Health & Safety 2015, 63 (4): 139-64
Employers are often put in a difficult position trying to accommodate state laws that allow the use of marijuana for medical purposes while enforcing federal rules or company drug-use policies based on federal law. To ensure workplace safety as well as compliance with state and federal legislation, employers should review state laws on discrimination against marijuana users and ensure that policies enacted are consistent with the state’s antidiscrimination statutes. Although it appears that in most states that allow medical marijuana use, employers can continue enforcing policies banning or restricting the use of marijuana, this approach may change on the basis of future court decisions. The Joint Task Force recommends that marijuana use be closely monitored for all employees in safety-sensitive positions, whether or not covered by federal drug-testing regulations. Best practice would support employers prohibiting marijuana use at work. Employers, in compliance with applicable state laws, may choose to simply prohibit their employees from working while using or impaired by marijuana. In some states, employers may choose to prohibit marijuana use by all members of their workforce whether on or off duty. Nevertheless, in all cases, a clear policy to guide decisions on when marijuana use is allowed and how to evaluate for impairment must be widely distributed and carefully explained to all workers. Legal consultation during policy development and continual review is imperative to ensure compliance with federal, state, and case law. Drug-use and drug-testing policies should clearly delineate expectations regarding on-the-job impairment and marijuana use outside of work hours. Specific criteria for use by supervisors and HR personnel when referring employees suspected of impairment for an evaluation by a qualified occupational health professional are critical. Detailed actions based on the medical evaluation results must also be clearly delineated for HRs, supervisors, and workers. The Joint Task Force recommends that employers review the following points when developing workplace policies that address marijuana use in the workplace: 1. For employees covered by federal drug testing regulations (eg, DOT and other workers under federal contract), marijuana use, both on or off the job, is prohibited. Thus, employers may use urine drug screening in this population. 2. Employees in safety-sensitive positions must not be impaired at work by any substance, whether it be illicit, legally prescribed, or available over-the-counter. Employers may consider prohibiting on the job marijuana use for all employees in safety-sensitive positions, even when not covered by federal drug testing regulations. Nevertheless, legal review of the employer’s policy in the context of state statutes is strongly encouraged. When employers allow medical marijuana use by employees, consultation with a qualified occupational health professional is recommended. 3. Employers residing in or near states that allow the use of recreational marijuana must establish a policy regarding off-work use of marijuana. In many states, the employer may choose to prohibit employees from simply working while using or under the influence of marijuana or may choose to prohibit marijuana use both on and off the job. Urine drug testing above traditional cutoff levels, or serum testing at any level, would be reasonable criteria for the employer wishing to ban both on- and off-the-job use. To detect impairment, a limit of 5 ng/mL of THC measured in serum or plasma as THC (or possibly the sum of THC plus THC-OH for employers who choose to evaluate both psychoactive components) would meet the goal of identifying individuals most likely to be impaired. Nevertheless, employers using the 5 ng/ml level need to understand the limitations of using a single number to fit all cases; therefore, a medical examination focused on identifying impairment is always recommended. Legal consultation is strongly recommended. 4. Although it appears that in most states that allow the use of medical marijuana, employers may be able to continue policies banning or restricting the use of marijuana as previously discussed, this practice may change on the basis of future case law. Currently the ADA does not apply in these situations because marijuana is illegal under federal law. Legal consultation is again strongly recommended. 5. Most workers’ compensation statutes allow reduced benefits when a worker is under the influence of alcohol or illegal drugs. Two samples should usually be obtained as a second confirmatory test may be needed. Proof of use and/or impairment is usually required for these cases, and a positive urine drug test (for the inactive metabolite) does not prove acute impairment. The serum level of less than 5 ng/mL could be used for presumptive evidence of impairment in these situations. An MRO is most helpful in helping determine these types of cases because legal testimony may be required. 6. All employers should have clear policies and procedures for supervisors to follow regarding the criteria for identifying potential impairment and the process for referring an employee suspected of impairment for an occupational medical evaluation. Policies should include action required by HR personnel based on the results of the examination. 7. Employee education is vital to ensure compliance with company expectations. Education is needed at hire and again at regular intervals. Workers must know the company’s chemical substance policy and management’s expectations for adherence. The employer’s commitment to a drug-free workplace and existing company policy will influence the education program’s content. At a minimum, employees should learn how chemical substances affect their health, safety, personal behavior, and job performance. Supervisors and employees should also be educated about how to recognize behaviors indicative of impairment, whether the source is medical marijuana, prescription medications, illegal drugs, alcohol, over-the-counter medications, fatigue, or any combination thereof. 8. In states where marijuana use is permitted, employers should provide educational resources regarding the detrimental effects of marijuana use, including caution regarding dose and delayed effects of edible products. This information may be obtained from SAMHSA and state governmental agencies. The safety of workers and the public must be central to all workplace policies and employers must clearly articulate that legalization of marijuana for recreational or medical use does not negate workplace policies for safe job performance. The evolving legal situation on medical and recreational marijuana requires employers to consult with legal experts to craft company policy and clarify implications of impaired on-duty workers. This changing environment surrounding marijuana use requires close collaboration between employers, occupational health professionals, and legal experts to ensure that workplace safety is not compromised.

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