Support for Grass Grows4 Steps to Keeping Workplaces Safe With New Marijuana Laws

November 2017 • Lockton Companies

L O C K T O N C O M P A N I E S

SARAH SULLIVAN Risk Control Services Coordinator

303.414.6449sarah.sullivan@lockton.com

Public opinion on marijuana continues to shift, with 64 percent of

the population now supporting legalization.1 The sharp increase

in acceptance in recent years may be most notable in the 55-and-

over age range. While many may associate the use of marijuana

with younger generations, recent studies looking at Medicare

enrollee data were surprised to find that, when applicable,

enrollees were making use of medical marijuana.2

Many government bodies are moving toward regulation; 29 states and Washington, DC, have now legalized marijuana recreationally or medically to some degree, with more likely to follow. See the map on page 2.

What does this mean for employers?

Managing employees who are under the influence isn’t anything new, but the ever-changing laws do make it more complicated. The primary concern for employers is the safety of their employees and companies. With this in mind, employers should focus on employee performance indicators as well as their training and hiring processes. This focus, rather than a focus on drug testing, will help promote safety among employees. Drug tests, whether a preemployment or random screen approach, can be one component of a safety program.

Managing employees who are under

the influence isn’t anything new, but

the ever-changing laws do make it

more complicated.

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November 2017 • Lockton Companies

12/05/96 CA Legalizes MM

11/03/98 AK, OR, & WA Legalize MM

11/02/99 ME Legalizes MM

06/14/00 HI Legalizes MM

11/07/00 CO & NV Legalize MM

05/25/04 VT Legalizes MM

11/02/04 MT Legalizes MM

01/03/06 RI Legalizes MM

03/13/07 NM Legalizes MM

11/04/08 MI Legalizes MM

01/11/10 NJ Legalizes MM

07/27/10 Washington, DC, Legalizes MM

11/02/10 AZ Legalizes MM

05/13/11 DE Legalizes MM

05/31/12 CT Legalizes MM

11/06/12 CO & WA Legalize Recreational MJ

11/06/12 MA Legalizes MM

07/23/13 NH Legalizes MM

08/01/13 IL Legalizes MM

03/25/14 AK Allows CBD Oil Products

04/10/14 KY Allows CBD Oil Products

04/14/14 MD Legalizes MM

04/16/14 WI Allows CBD Oil Products

04/17/14 MS Allows CBD Oil Products

05/29/14 MN Legalizes MM

06/02/14 SC Allows CBD Oil Products

07/01/14 IA Allows CBD Oil Products

07/03/14 NC Allows CBD Oil Products

07/05/14 NY Legalizes MM

07/14/14 MO Allows CBD Oil Products

11/01/14 Guam Legalizes MM

02/24/15 AK Legalizes Recreational MJ

02/26/15 VA Allows CBD Oil Products

04/16/15 GA Allows CBD Oil Products

04/28/15 OK Allows CBD Oil Products

05/03/15 Puerto Rico Legalizes MM

05/19/15 TX Allows CBD Oil Products

06/29/15 LA Allows CBD Oil Products

07/01/15 OR Legalizes Recreational MJ

04/17/16 PA Legalizes MM

05/04/16 AL Legalized CBD Oil

06/08/16 OH Legalizes MM

11/08/16 CA, NV, ME, & MA Legalize Recreational MJ

11/08/16 ND, AR, & FL Legalize MM

04/19/17 WV Legalizes MM

07/01/18 VT Legalizes Recreational MJ

Major Milestones

Values as of November 2017

Recreational/Medical

Medical Only

Limited Access to Marijuana Products

Illegal

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November 2017 • Lockton Companies

How does marijuana impact employee performance?

Many studies evaluate the performance impacts of marijuana use. The results vary widely depending on a multitude of variables. The variables to consider throughout these studies are alcohol use, gender, age, deviant aspects (social nonconformity, criminal behavior), socioeconomic status, mood, user expectations, weight, mental state, and manner in which the marijuana is ingested.3,4 The Hickox study takes into account all variables listed.

Hickox, 2012

Less than one third of studies show correlations between

Verbal skills 7%

Perceptual/motor 28% Abstraction/executive 27%

Simple reaction time 27%Learning 7%

16.1% of recent marijuana users

compared to 11.2% for nonusers.

missed two or more days in the past month

In evaluating productivity loss, however, the focus lands on

alcohol users 48% compared to marijuana users 14%

One surprising factor in a 98-day controlled study was the statistically

significant increase in output per hour for marijuana users.

The research does show that any effect of marijuana use on work

performance may be short-lived. The effects last at most for

several hours, with the peak being approximately 30 minutes

after smoking and the baseline of two hours to normal.

One thing is for certain: “At a minimum, the research shows

the effects of marijuana on the ability to work vary

significantly across marijuana users and the type

of work involved. Some studies have not recognized

differences in effects across users, perhaps because all drug

users were placed in just one category.”

marijuana use and decreased function

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November 2017 • Lockton Companies

What actions should employers take?

Employers should review job descriptions and ask questions. Would the off-duty use of marijuana affect an employee’s ability to perform the job duties? If the off-duty use affected the employee’s abilities, could a marijuana user be accommodated in this position safely?

Job descriptions should include all job duties and responsibilities—not just the essential functions. Some states have laws stating that if an employee who uses medical marijuana cannot fulfill any or all of his or her job responsibilities, the employer is not required to accommodate the use.5 Employers should evaluate each position based on the type of work being performed. Would the off-duty use of marijuana affect the employee’s ability to do the defined job duties or his or her ability to do the job from a cognitive or motor skills perspective?6

Some positions, such as commercial motor vehicle operators, pilots, and covered aircraft maintenance personnel, do not permit marijuana use.7 Employers should consider how the legal use of recreational or medical marijuana affects employees in other safety positions, such as heavy machinery operators, precision tool operators, school bus drivers, police, and firefighters.6

Managers should receive training on how to recognize impairment. In addition, managers will need to know the correct procedure and processes for how to document their observations.5 Studies have shown that impairment will be recognizable to trained observers.4

Employers are faced with many challenges when determining impairment. Employers will need to determine if there was a drug in the employee’s system at the point of the accident, what level of that drug was present, and what the employee’s level of impairment was at the time of the accident or injury.6

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November 2017 • Lockton Companies

In many courts across the country, employers are finding that urine and saliva tests are often inadmissible because they do not fully establish the employee’s impairment at that exact moment.4 In Georgia, a court found that without proof of the behavior or conduct being visibly affected, it would need more to conclude that the employee was intoxicated than just the proof that he or she had at some point in the past several weeks ingested drugs or alcohol.4 In Louisiana, the testimony of the employer on behalf of the employee, stating that the employee had performed his or her job well and did not appear to be intoxicated, was sufficient to outweigh the drug test expert testimony.4

Determine if drug testing is the right fit for your company and, if so, in what capacity. Employers must decide if drug testing is the best method to determine when an employee is impaired or intoxicated.4 For-cause drug testing should be considered separately from preemployment drug testing when creating a drug policy.

The goal of drug testing is not to determine the presence of drugs in an employee’s system but to determine whether the employee is impaired and unable to perform the duties of his or her job.4

There are two aspects of evaluating how drug testing affects job safety. The first is the consideration of the employees in positions in which safety is an ongoing concern; the second is the impact on the company and employees.6

When looking specifically at the safety components related to drug testing, many studies fail to find a definite correlation between testing and organizational gains and safety.4 Additionally, because of differing metabolic rates across individuals, it is almost impossible to detect the actual level of impairment from the test.4

Many studies consistently find that there is a correlation between marijuana use and driving accidents. Driving simulator laboratories can study the effects on abilities. However, a policy against anyone who tests positive might be too strict. Some users may not experience any effects on their driving abilities, and it may be more indicative of a risk-taking personality, fatigue, other drugs/alcohol, or the individual’s baseline ability to drive.4 Researchers concluded that the substance use—not actual impairment at the time—did not add significantly to the prediction of accidents in either the high- or low-risk test groups after they controlled for other personal, deviance, and work-environment factors.4

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November 2017 • Lockton Companies

ADA Accommodations

An employee who is a medical marijuana user could argue for accommodation based on a disability. If the employer’s intent is to bar medical marijuana use entirely, there needs to be a clear policy that the employer need not accommodate intoxication at work. However, this will still not excuse the employer from accommodating the off-duty use by the employee.4

Should employers ask about medical marijuana prescriptions and if so, when?

The main benefit of employee disclosure is that once the information has been revealed to the employer, the employer can monitor employees for indications of impairment while focusing on the employees’ actual safety and ability to perform their job duties.4 Determining the point in the hiring process to ask is important and should be considered along the ADA disclosure guidelines.5

Employers should ask three questions when designing a drug testing policy:

Is there an obligation to accommodate a medical marijuana user who does not consume during work hours, especially if this person is protected based on a disability?4

Will we test for marijuana? The issue of testing for marijuana is complicated because it can be detected in the urine for 11 or more weeks after use.5 The DHHS guidelines for testing were established to determine solely if an employee had used drugs at all, not the current level of inebriation or amount of consumption.4 Any testing should be based on state and federal law.5

Will all persons be tested before employment or solely if we believe the employee is inebriated?

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November 2017 • Lockton Companies

Employers should consider alternatives to drug testing. One alternative is psychomotor testing, which measures the employee’s current state. These tests measure reaction time and coordination, which will provide the employer immediate and accurate results directly related to the employee’s job performance.4

Organizations that use psychomotor testing over drug testing reported that the psychomotor testing improved safety up to 82 percent, and some reported a decrease in accidents up to 50 to 75 percent, depending on the industry.4

Oral fluid testing, while facing similar issues of testing the level of impairment, is more accurate for providing a time frame of use within a few days.8 Prototypes of breathalyzers that can detect THC levels are in development and testing and will provide a new level of protection for employers.9

So why do employers continue to rely on drug testing? The main reason is fairly simple: organizations may assume that drug use is not a behavior they want in their employees as it is stigmatized to be indicative of social nonconformity, criminal behavior, and social maladjustment.4

Several states have found that medical marijuana patients should not be considered to be under the influence just because they test positive on drug tests.4 Employers need to decide how the use of legal, recreational, and medical marijuana will affect their ability to drug screen and decline candidates.6

While both criminal and workers’ compensation standards strongly recommend that a positive drug test is insufficient grounds on its own to establish impairment, most states will allow employers to use drug test results to establish the presumption of intoxication or impairment.4 At least 10 states at this time have specific procedural requirements for a drug test to be used to bar workers’ compensation benefits that must be followed exactly.4 Lockton can assist employers in creating a safety program and determining if drug testing is a good fit for their business.

1 http://news.gallup.com/poll/221018/record-high-support-legalizing-marijuana.aspx2 Sifferlin, 20163 Weiland, Thayer, Depue, Sabbineni, Bryan, & Hutchison, 20154 Hickox, 20125 Geller, 20166 York Risk Services Group, 20167 Erdil, 20168 French, 20179 Pew, Medical Marijuana Work Comp Implications, 2015

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