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It’s still complicated, so says a panel of medical, workplace safety and legal professionals regarding the relationship between medical marijuana, recreational marijuana, safe workplaces, drug testing, and state and federal laws.
The American Society of Safety Professionals annual conference kicked off Tuesday with a session on marijuana use and workplace safety issues, a topic several attendees chiming in on the online portal said continues to be one discussed “daily” in workplaces. The three-day conference was originally scheduled to take place in Orlando, Florida, but held online because of the coronavirus pandemic; two sessions were devoted to the topic of marijuana and workplace safety.
“Objectively evaluating for impairment at the worksite has always been challenging and the legalization of marijuana has compounded that challenge,” said Dr. Gregory Robbins, Lexington, Kentucky-based physician for Premise Health Employer Solutions LLC who serves as the medical director for Toyota Motor North America affiliates in the U.S.
To date, 33 states and the District of Columbia permit the use of medical marijuana, and 11 states and the District of Columbia decriminalized its recreational use. The federal government still considers it an illegal substance, and the Americans with Disabilities Act say employers do not have to accommodate its use among those who need it for health conditions, according to panelist Kristin White, Denver-based partner with Fisher & Phillips LLP. “But that’s not the end of the story,” she said.
Running parallel to conflicting laws are state laws and state court cases that either support accommodating a worker with a medical marijuana card or state a worker can be fired for violating a drug-free policy, according to Ms. White. “You need to look at state laws; that’s where we are seeing this develop,” she said.
Complicating matters further is the lack of adequate testing for marijuana, said Todd Logsdon, Louisville, Kentucky-based national workplace safety practice group co-leader/partner with Fisher & Phillips. What does exist, urine-, blood- and hair-sample testing for the psycho-reactive THC, does not measure impairment – the tests simply detect the drug in one’s system – and have “limited use” in workers compensation cases where an injured worker is tested for drugs post-injury, he said.
The conundrum poses few solutions, but one appears constant: Pay attention to safety-sensitive positions and have policies in place that describe a person’s job duties and indicate whether they are subject to drug testing to help maintain a safe work site free from drugs, according to panelists.
Ms. White said some states — such as Nevada — call for employers to not accommodate marijuana use in safety-sensitive positions and that they may rely on testing for employees. “That’s where job descriptions become important for safety-sensitive positions… this is a job you can’t accommodate” one’s use of medical marijuana. She said some jobs, such as those clerical or in an office space, would not likely meet that bar. Others, such as a driver or forklift operator, would qualify under a safety-sensitive provision.
A study released earlier this month showed a 6.7% decline in workers compensation claim activity where states have approved medical marijuana.