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New drug tests set to hit the market in 2020 are aiming to zero in on marijuana impairment similar to that of an alcohol breathalyzer and could offer employers solutions in the ambiguous landscape of both safety and compliance with federal drug and disability laws, experts say.
A big problem is employers have no way to measure current impairment from marijuana use, said Spokane, Washington-based Dr. Carmen Wiley, president of the American Association for Clinical Chemistry.
“What’s tricky about the measurement of THC and other marijuana metabolites — especially in urine and other fluids — is that you can have detectable levels anytime between three and 30 days after use,” said Dr. Wiley. “That’s a really big window,” and levels at this point in time depend on how often the individual uses marijuana and on their body’s specific metabolism.
It’s fast becoming a national concern among employers, regulators and other stakeholders in workplace safety, just as drug testing companies and researchers aim to solve a growing concern among employers.
An accurate marijuana breathalyzer could be a “game changer” for employers who are struggling to determine when an employee may have used marijuana — whether it was on the job or off-duty, said Ben Tievsky, senior associate in the New York office of Pillsbury Winthrop Shaw Pittman LLP.
“There are legitimate reasons why employers don’t want marijuana use in the workplace, especially in safety-oriented occupations,” he said.
Thirty-three states and the District of Columbia permit medical or recreational marijuana, creating a “current patchwork of laws to address medical marijuana use and workplace safety” that are “detrimental to employees, employers and the general public,” said the American College of Occupational and Environmental Medicine in an Oct. 14 statement to members of Congress, urging lawmakers to “carefully consider” the impact of federal marijuana legislation on workplace safety and allow employers to prohibit those in safety-sensitive positions from working while under the influence of marijuana.
Positive drug tests have reached a 14-year high, according to a new analysis released in April by Secaucas, New Jersey-based Quest Diagnostics, with marijuana topping the list of the most commonly detected illicit substances in all workforce categories. In addition, post-accident positive drug tests also increased, and jumped by 81% in federally mandated, safety-sensitive workers between 2014 and 2018.
And yet the testing isn’t reliable to meet the needs of employers, experts say.
One issue is the lack of an agreed-upon blood concentration of THC, a common term also known as delta-9-tetrahydrocannabinol, which is the active ingredient in marijuana that provides the high.
Six states have established legal THC driving limits, but these vary widely. Colorado, the first state to develop such a limit, allows drivers with five nanograms of THC in whole blood to be prosecuted for driving under the influence. However, law enforcement officers have the authority to base arrests on observed impairment regardless of the test’s result.
“As marijuana use, especially recreational use becomes more common, I think it’s more likely that testing to determine impairment will need to be developed,” said Dr. Wiley.
And products are in the works, according to recent announcements that have made headlines.
In August, a team of researchers from the Swanson School of Engineering at the University of Pittsburgh in Pennsylvania announced that they had developed a prototype of a breathalyzer to measure the amount of THC in an individual’s breath.
Hound Labs Inc., based in Oakland, California, plans to bring its marijuana breathalyzer to market in 2020. The company, founded in 2014, uses an optical reader and ultrasensitive technology to identify THC in a breath sample, which the company says can determine whether an individual ingested THC marijuana within the past few hours. The company recently raised $30 million in financing to accelerate the manufacturing of the device, according to a statement.
This breathalyzer does not measure an actual THC level like an alcohol breathalyzer would for determining the blood alcohol concentration for an individual, said Doug Boxer, Hound Labs’ chief of policy and strategic partnerships. However, research suggests that individuals are most impaired between two and three hours after ingesting marijuana, and the company’s breathalyzer can detect use within this time frame from smoking, vaping, dabbing and ingesting via edibles, he said.
“The thing that’s groundbreaking about this test is it can distinguish recent use from historic use,” Mr. Boxer said. “An employee in many states has a legal right to use cannabis.”
In industries with large numbers of safety sensitive positions, such as the oil and gas industries, employers have expressed an interest in this type of technology for pre-access to a worksite, said Mr. Boxer.
Although the company has not determined a set price yet, Mr. Boxer speculates the breathalyzer device will cost about $5,000 with each single-use cartridge costing about $50; but the company is working to drive the cost down, he said. The cartridge records the initial test, which can be processed in about 12 minutes, as well as a confirmatory breath sample that can be processed later.
While they wait for accurate testing, employers need to walk a fine line between ensuring the safety of their workplace and accommodating employees, said Jennifer Mora, senior counsel in the Los Angeles office of Seyfarth Shaw LLP, particularly as more jurisdictions, such as Maine and New York City pass laws banning adverse employment actions based on off-duty marijuana use.
Separating safety sensitive roles from non-safety sensitive positions is one option, and maintaining testing and zero-tolerance for those safety sensitive positions only, she said. Employers also may consider training managers on impairment signs and using reasonable suspicion checklists, said Ms. Mora.
Mark J. Neuberger, co-chair of the cannabis industry team in the Miami office of Foley and Lardner LLP, suggests employers look to state troopers for inspiration by conducting field sobriety tests on employees suspected of mairjuana impairment instead of just sending them out for drug testing.
“There’s scientific evidence behind that” and it’s legally acceptable, he said. “You don’t need to be a law enforcement person to get training. If you suspect an employee in the workplace is impaired … put them through the test and make a reasonable determination.”
In terms of accommodating a disability or medical ailment as is required with the federal Americans with Disabilities Act, medical marijuana presents one of the biggest challenges for employers, particularly if they have a zero-tolerance drug policy, said Mr. Neuberger. That’s because an employee may have a legitimate disability and use medically prescribed marijuana at night and on weekends, requiring the employer to go through the interactive process to determine if an accommodation needs to be made, he said.
“In those cases, what I’ve done with the employer is say, ‘go back to the employee, tell them you’re going to respect and accommodate this usage and keep on file their current medical marijuana card,’” he said. He also advises employers to explain that if the employee comes to work appearing under the influence that he or she will be subject to discipline up to and including termination.
CHICAGO — The landscape for the use of medical marijuana and cannabinoids is changing in workers compensation, and it’s likely that more insurers will be required to pay for this in the near future, experts say.