The growing disparity between federal and state laws regarding the legality of marijuana has reached the point where it is a serious safety issue for many employers.
It’s been more than 25 years since California legalized medical marijuana, starting a trend among states that was expanded to include the broad legalization of recreational pot for about half the U.S. population. There are now 38 states that allow medical marijuana and 23 that allow recreational marijuana. Washington D.C. permits both forms of usage.
While it’s been 10 years since the federal government made clear it would not seek to interfere with state marijuana laws, that does little to alleviate the problem of employers seeking to ensure they obey all the laws they operate under and respect the rights of workers.
Federal legalization of marijuana seems unlikely in the near term, although some advocates hope the Biden administration may at least reschedule the drug so that it is no longer lumped in with the likes of heroin and LSD as a Schedule 1 drug.
Regardless of possible future changes, the confusion inhibits a coherent approach to national drug policy. As we report here, the issue is of particular concern in industries with high-risk occupations, such as the construction industry.
When legal pot laws were first passed, employers were often advised to treat pot in a similar way to alcohol — while drinking off the clock might be legal, workers should not be allowed to turn up to work drunk. That seems like a nice analogy, but it falls apart when it comes to determining impairment. While there are well-established testing protocols to gauge impairment by alcohol for a worker involved in a workplace accident, a worker found with marijuana traces in his or her bloodstream may have taken the drug days or even weeks before.
The dual system also confuses the issue of pre-employment drug testing. A worker might reasonably argue that a legal activity they indulge in in their own time is their own business. And given the current shortage of workers in many industries, employers might be inclined to agree.
While drug test manufacturers are developing tests that they say will test for impairment, they are not yet in widespread use, and it will likely be awhile before they are accepted.
Until then, employers will have to deal with the problem themselves. There’s no panacea, but workplace safety policies that emphasize awareness of impairment and the need to report potential violations should be encouraged. In addition, employee communications should stress the importance of self-monitoring and disclosure in the interests of safety.
Maintaining a safe working environment is critical for employers, and finding a way to address marijuana impairment is an essential step toward achieving that goal.