Risk & Business Magazine JGS Insurance Risk & Business Magazine Summer 2018 | Page 25

LEGALIZED MARIJUANA
Workplace Drug
Testing In The Age Of
Legalized Marijuana
ccording to the US Food
and Drug Administration,
marijuana is a controlled
substance. Other federal
agencies including OSHA and
nongovernmental groups such as workers’
compensation underwriters all support firm
and consistent testing and regulation.
However, this is all changing with the
expanding legalization of medical cannabis
and adult-use recreational marijuana.
Marijuana is now legal in nine states,
Washington, DC, and perhaps within the
next two years, New Jersey and several other
states. This means that soon, more than
one in four American adults will be able to
eat, drink, smoke or vape marijuana as they
please.
Employers have always been able to test job
applicants and employees for the presence
of marijuana in their systems. If a company
had a firm drug policy in place, they could
discipline or fire you.
Now, the employer’s problem is how to
handle marijuana testing and marijuana use
during work hours. As noted by attorneys
Timothy P. Van Dyck and Nathaniel
Nichols at Edward Wildman Palmertate,
“this uncertain regulatory scheme places
employers in the delicate position of
attempting to comply with divergent laws
while maintaining order and safety in the
workplace.”
The dramatic developments of legal
medical and recreational marijuana, and
the resulting focus on testing employees
for marijuana, provide an important
opportunity to reevaluate all workplace
drug-testing practices and to update drug-
testing procedures — not only for marijuana
but for other substances both legal and
illegal.
Employers should conduct competent
legal reviews of their drug-free workplace
policies and programs by consulting
attorneys who are familiar with applicable
federal, state and local laws. When
developing a drug-free workplace policy,
employers should be aware that the
presence of THC (the active ingredient in
marijuana) in the body may not indicate
someone is presently impaired. THC can be
detected for several days — or even weeks,
if the employee is a “frequent user.” This is
important because as part of your policy
review, you need to articulate whether you
wish to ban all employee drug use or merely
impairment.
Make sure you are prepared to consistently
follow your stated procedures.
Make sure you have communicated your
policy to all employees and clearly state
what is expected of them.
Train your managers about confidentiality
relating to sensitive employee information
— including drug-test results and requests
for accommodations for medical conditions
for which marijuana is prescribed
(especially under state law).
If you choose to have a zero-tolerance
policy, you should be prepared to answer
additional questions: How will you handle
employee recreational use that is permitted
by law? Will you look to federal law to
BY: ERIC P. WOKAS, CSP ARM,
RISK CONTROL CONSULTANT,
JGS INSURANCE
justify a true zero-tolerance policy? Are you
an organization that has federal contracts?
How difficult will it be to recruit candidates
in a tight labor market?
If your company is willing to accept a
THC-positive reading, there are a number
of efforts underway to develop an accurate
method — akin to the Breathalyzer for
alcohol — to measure actual marijuana
impairment. Such a test would be useful
not only for employers but also for police
and prosecutors trying to determine what
constitutes driving under the influence of
marijuana.
So what do you do when someone tests
positive?
While termination is still an option,
when you consider the costs of employee
turnover, support through an Employee
Assistance Program (EAP) is often the
most cost-effective solution. An EAP may
include confidential access to treatment,
changing the employee’s job temporarily if
the employee is treated while remaining at
work, or reintegration into the workplace
after successful treatment. +
Eric Wokas has over 25 years of experience as
a risk management consultant working for
various major property/casualty insurance
carriers including Continental, Zurich and
Gerling as well as Aon an international
insurance brokerage firm. At JGS Insurance
Mr. Wokas continues to assist clients
in development and implementation of
practical solutions in reducing risk.
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