Understanding the Concept of 'Legal Impairment': Legalized Marijuana in the Workplace

By John Stahl, Esq.

The legal implications of decriminalizing limited marijuana-related activity in some states extend beyond basic challenges such as amending zoning laws to accommodate medical marijuana dispensaries. The associated increasingly large populations of employees that are introducing the impact of marijuana into the workplace require reasonable laws and employment policies in response to that once completely forbidden practice.

A recent webinar titled “Legalized Impairment: What Employers Can Do About It”, which was hosted by Occupational Health and Safety Magazine and Orasure Technologies, Inc., identified specific drug-related employment issues and offered guidance regarding those challenges. Drug testing expert Bill Current of WFC & Associates, LLC., in Pompano Beach, Florida was the presenter.

Current, who has had a long career in the drug-testing industry, remarked that we have a new situation where drugs that we’ve normally considered to be dangerous, i.e., impairment type drugs, are actually being legalized. These changed circumstances confuse and concern employers.

Federal Drug Abuse Statistics

Current stated that the federal government defined a “current drug user” as someone who had admitted that he or she had used an illicit drug at least once within 30 days of being surveyed regarding drug use. In 2011 22.5 million Americans above the age of 11 satisfied that criteria. That represented both 8.7 percent of the total population in that age group and a .7 percent increase in that statistic since 2007.

Statistics regarding marijuana indicate that more than 18 million current drug users in 2011 admitted to using that drug. That was compared to 17.4 million such users in 2010 and 14.5 million in that population in 2007.

Current noted that the hesitancy of some people to admit to illegal drug use likely resulted in the statistics cited above not accurately reflecting the extent of the drug problem in the United States. He shared that the “honesty” factor alone prompted the federal government to estimate that the United States had as many as 30 percent more current drug users than the 22.5 million people who admitted to engaging in that activity.

Current additionally discussed the increased marijuana use among people in the age range between the late teens and mid-20s. A concern for employers would be that “teen drug users today are tomorrow’s job applicants.”

Although Current did not specifically address the risks that younger employees using marijuana presented regarding workers’ compensation, an important link exists between that practice and workplace safety. Specifically, the enhanced risk regarding that behavior among that population is that younger people often perform unskilled labor that requires equipment with sharp edges and other hazards that causes serious harm if improperly operated and maintained.

Fake Marijuana

Current also presented statistics regarding various forms of fake marijuana. A primary advertised use of those synthetic cannabinoids substances is as an incense, but a significant number of people disregard warnings not to ingest them. Drug courts report a 15-percent positivity rate for synthetic cannabinoids. A related caveat was that traditional drug tests that detected marijuana did not detect the fabricated versions of that substance.

Current reported as well that the vast majority of states have passed laws that have banned synthetic cannabinoids and/or the equally dangerous “bath salts.” On the federal level, essentially broadening the scope of the Controlled Substance Act to encompass synthetic cannabinoids and Mephedrone and MDPV, which are substituted cathinones, subjected those drugs to federal regulation.

Current pointed out that a person’s behavior under the influence of synthetic marijuana can still be dangerous to others as well as to the person’s own health and well-being.

Medical Marijuana

Current reported that new medical marijuana laws in Massachusetts and Connecticut brought the total of states with such legislation up to 18. Generally speaking, medical marijuana laws in those states and in the District of Columbia remove state-level criminal penalties on the use, possession, and cultivation of marijuana by patients who possess either a written or oral recommendation by a physician.

Describing the pro-marijuana movement as cohesive, well-organized, and well-funded, Current predicted that many additional states will have viable campaigns to legalize medical and/or recreational use of marijuana over the next few years. This could lead to a greater population of workers performing their jobs in an impaired condition.

Current specifically referred to the decision of the Sixth Circuit Court of Appeals in Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (lexis.com), 695 F.3d 428 (Lexis Advance) (6th Cir. 2012), which concluded that the protections that Michigan’s medical marijuana law granted Wal-Mart employee Casias did not include an exemption from employment-related discipline that stemmed from using physician-recommended marijuana.

The Sixth Circuit reasoned that Michigan’s medical marijuana law did not regulate private employment activities. In other words, the scope of that law protected Casias from being arrested for possessing or using the amount of legally permitted marijuana but not against adverse employment decisions related to that use or possession.

Current pointed out that the widespread impact of the Sixth Circuit’s decision included subsequent medical marijuana laws in other states that provided limited protection from workplace discipline when medical marijuana was involved. Although Current did not address how workers’ compensation coverage may be denied for an otherwise compensable incident if the claimant was intoxicated at the time of injury, he did state during his discussion of legalized recreational use of marijuana that some workers’ compensation systems required that employers test claimants for marijuana use. Some of those laws also, when appropriate, conditioned denying a workers’ compensation claim on adequate proof of a positive drug test result.

Current also did not address potential efforts to have workers’ compensation systems include medical marijuana in the list of authorized care for claimants. Such an initiative would likely trigger the same types of debates that related to whether workers’ compensation systems should authorize non-traditional medicines. Additionally, it would likely trigger more discussion regarding addictions and other ills associated with medical marijuana.

Legalized Recreational Marijuana

With respect to the recent Colorado law that decriminalized non-medical activity related to small amounts of marijuana, Current noted that the law provides that “nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, sale, or growing of marijuana or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Current contrasted the scope of the Colorado law with Washington State’s marijuana legalization law. In noting the absence of an employment clause in the Washington law, Current observed that it does not change the right of Washington employers to drug test employees. He further observed that Washington’s laws regarding drug testing employees were at least fairly typical of those in other states.

Current Advice

With regard to employer policies on medical marijuana, Current clearly recommended using the term “under the influence,” rather than “impairment,” and providing employees specific information regarding the company’s drug-testing policy, which includes notice that a positive drug test authorizes adverse employment action. Those recommendations reflect state laws that condition the right to conduct drug tests on providing that type of detailed information.

Current emphasized the need for testing for marijuana use despite the liberalization of laws regarding that activity by pointing out that that drug is still an illegal Schedule I drug under federal law.

With respect to the types of drug-testing methods available today, Current noted that each method had its advantages and disadvantages. The suggested choice is the one that meets a company’s individual needs.

Bottom Line

Despite the strong trend toward states legalizing at least medical marijuana, Current pointed out that although he and his fellow experts cannot definitively state the extent to which introducing legal marijuana-related impairment into American society will affect employers, the best course seems to both reasonably adapt to current circumstances and use the lessons of those new conditions to appropriately plan for the future.

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