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CALIFORNIA COMPENSATION CASES
Vol. 89, No. 1 January 2024
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
Karen C. Yotis, Esq., a Feature Resident Columnist for the LexisNexis Workers’ Compensation eNewsletter, provides insights into workplace issues and the nuts and bolts of the workers’ comp world.
For a Schedule I drug with no currently accepted medical use (at least according to the United States government) you’d think that employers would be able to establish some bright line rules against anything to do with marijuana in the workplace and call it a day. After all, “the Devil’s Harvest” is the most prevalent psychoactive substance (second only to alcohol) to turn up in DUI cases and the most often detected item in workplace drug testing and can clearly have a significant (and unfavorable) impact on employers, workplaces and workers’ compensation. Yet the most widely used controlled substance in the United States and worldwide also a spells R-E-L-I-E-F from nausea, pain and other symptoms for patients suffering from cancer, HIV/AIDS, glaucoma and multiple sclerosis. And even though Federal law strictly prohibits its possession and use, a total of 23 states, Guam, and the District of Columbia [fn1] have “legalized” marijuana use for medicinal purposes.
Society’s changing relationship with marijuana, the evolving legal backdrop and emerging scientific evidence about marijuana’s effectiveness as a treatment for certain health conditions prompted the American College of Occupational and Environmental Medicine (ACOEM) in conjunction with the American Association of Occupational Health Nurses (AAOHN) to promulgate guidelines about marijuana in the workplace. These guidelines provide a detailed background history of pertinent issues that includes available medical literature, discussion of drug testing issues and analysis of the regular and rapid legislative developments that continue to occur. Albert (Bert) B. Randall, Jr., Esq., a principal at Franklin & Prokopik, P.C., who will be speaking next month on medical marijuana at the Self-Insurance Institute of America Workers’ Compensation Executive Forum, told us “Frankly, in my mind, simply demonstrating the need for a separate medical marijuana policy, or at least provision, is the first step in navigating these increasingly treacherous waters.”
In this guidance document, published by JOEM in April 2015 and titled “Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers,” authors Jennan A. Phillips, PhD, MSN, RN, Michael G. Holland, MD, Debra D. Baldwin, NP-C, PhD,Linda Gifford Meuleveld, RN, COHN-S, CCM, CPDM, Kathryn L. Mueller, MD, MPH, Brett Perkison, MD, MPH, Mark Upfal, MD, MPH, and Marianne Dreger, MA provide employers with a detailed checklist of issues to consider when forming a medical marijuana policy.
LEGAL ISSUES—PREVENTING FEDERAL DOLLARS FROM GOING UP IN SMOKE
The authors of the ACOEM/AAOHN guidance statement recount the flip-flopping Department of Justice enforcement policy (that encouraged federal prosecutors in 2009 not to pursue medical marijuana distributors who acted in accordance with state laws and then reiterated in 2013—after Colorado and Washington voted to approve marijuana for recreational use—its right to challenge the validity of state marijuana laws) to underscore the confusing landscape that employers must maneuver as they struggle to comply with divergent legislation while providing employees with a safe place to work. Their ensuing discussion about the legal implications of marijuana legislation revolves around the Americans with Disabilities Act (ADA), drug and alcohol testing regulations, the Drug-Free Workplace Act (DFWA), federal laws that relate to transporting marijuana across jurisdictional lines, and the (often discordant) laws that are in effect in the various states.
In a nutshell, as long as marijuana continues to be illegal under federal law, employers do not run afoul of the ADA if they refuse to hire marijuana users, and the ADA does not require reasonable accommodation of disabled employees who are registered medical marijuana patients. The quicksand terrain upon which an employer may find itself as it attempts to fire or refuse to hire individuals who fail drug tests is quite perilous however, and depends on whether a state’s medical marijuana law protects employees from discrimination. Employers could also run the risk of losing their federal funding if they don’t make a continuous, good faith effort to adhere to the drug-free workplace requirements of the DFWA (this means publishing and distributing a drug-free policy statement rather than imposing actual testing requirements). Some states prescribe employer action against workers who use cannabis according to state standards, so an employer’s decision to drug test should be: (1) job related; (2) necessary for business; and (3) conducted when evidence of a safety or job performance issue exists. Drug (and alcohol) testing regulations also vary based on whether the employer is private or a federal agency, whether the employee’s job falls into a safety-sensitive category or whether the workforce is comprised of union members.
On the multi-layered issue of state marijuana laws, Mark Pew, Senior Vice President at PRIUM and nationally recognized thought leader on the topic of marijuana in the workplace cautioned that, “legal counsel is absolutely required to see what a state does and does not allow. For multi-state employers, it is even more difficult to navigate corporate policies, so they may require unique policies for each individual state.” Pew will also be speaking about medical marijuana at the Self-Insurance Institute of America Workers’ Compensation Executive Forum next month.
MEDICAL ISSUES—THE THINGS WORKERS DO WHEN THEY’RE DAZED AND CONFUSED
The authors of the ACOEM/AAOHN guidance statement also assess a number of impairment studies to demonstrate how the subjective “high” from marijuana use varies depending on THC concentration, dose, method of administration (inhaled or ingested) and the degree of experience that a user has with the drug (similar to chronic alcohol use, the chronic, frequent marijuana user shows less impaired behavior from acute use than the occasional user, although the degree to which the acute user’s impairment decreases during safety-sensitive tasks remains unclear). In addition to the self-described user symptoms of euphoria, relaxed inhibitions and increased appetite, other observed impairments associated with marijuana use impact the central nervous system (lack of concentration, decreased learning and memory, altered thought formation and expression, drowsiness, and sedation) and cause physiological manifestations (such as increased heart rate, dry mouth, pupil dilation and increased appetite).
To supplement these subjective indicia of impairment, the authors point to what they call “good evidence from a number of studies” which demonstrate that serum levels averaging between 3.1 and 4.5 (for oral marijuana) and 3.3 to 4.5 (for smoked marijuana) cause impairment that is approximately equivalent to a blood alcohol concentration of 0.05 g% (which is “roughly equivalent to the BAC for alcohol impairment that federal drug testing laws use for safety-sensitive workers). The authors also warn employers against assessing impairment by measuring THC levels in isolation, suggesting instead that definable signs of impairment be documented or demonstrated, and that saliva testing be conducted as a “screening tool” to determine the appropriateness of supplemental blood testing.
Pew provided another interesting layer to this discussion by ACOEM/AAOHN when he explained that:
“The testing of impairment is the ‘holy grail’ for managing this going forward. The validation of presence is not enough to tie causality, especially given how long THC can remain detectable. Just because employees test positive doesn’t mean they were stoned, which doesn’t mean they got hurt (or hurt someone else) because they were stoned. There is some work being done on THC Breathalyzers (Cannabix Technologies, Washington State University), which if successful in gauging the 2-5+ng/mL plasma level would be usable by police as well as potentially employers.”
JOINT TASK FORCE RECOMMENDATIONS—OR HOW TO ROLL YOUR OWN WORKPLACE POLICY
When it comes to complying with conflicting state and federal laws on marijuana use while ensuring workplace safety, it all boils down to clearly defined expectations, strategic best practices and transparency. ACOEM and AAOHN accordingly recommend that employers consider the following eight points when developing a workplace policy to guide decision-making and behavior with respect to marijuana use. As Randall succinctly put it, “these guidelines provide a great jumping off point to start internal review and discussion as to how best to craft an employment policy and testing procedure that effectively addresses the significant concerns brought on by increasing medical marijuana usage.”
Federal drug testing regulations
Employers subject to federal drug testing regulations should know about their obligation to impose a blanket prohibition against all marijuana use at the peril of sacrificing their federal funding. These employers can urine test employees that perform work for operations like the DOT or pursuant to federal contracts for marijuana use both at work and on personal time.
Employers are encouraged to prohibit employees in safety-sensitive jobs from dipping into the available array of illicit, prescribed or over-the-counter substances that would cause them to be impaired at work. The guidelines also recommend that employers consult with a legal professional about how a proposed workplace drug policy might impact with applicable state laws and engage the services of an occupational health professional if the employer’s policy permits workers to use medical marijuana.
Although this second item hits the basic reasoning that underlies a recommended blanket prohibition against all marijuana, alcohol, opioid, or whatever type of impairment, Pew advanced the ACOEM/AAOHN discussion several steps further when he hypothesized:
“In what role IS it ok to be stoned? Is it ok for the accountant to be stoned? How about the cashier? How about the programmer?”
Development of a policy about employees using cannabis when off work is essential for employers located in close proximity to jurisdictions that expand permissible marijuana use beyond medicinal purposes. Whether the employer chooses to simply prohibit employees from being under the influence while working or block the use of wacky weed both on and off the job, the guidelines caution employers against using a single THC serum or plasma level (without a supplemental medical exam) as a measure to identify impairment.
Pew adroitly pointed out how the topic of recreational marijuana is applicable on many levels when he explained:
“I’m currently in Texas, and the Appeals Board in an adjacent state (New Mexico) found twice that employers need to reimburse employees for ‘medical’ use of marijuana. Nebraska and Oklahoma attorneys general are suing Colorado at the U.S. Supreme Court trying to roll back the recreational legalization. And given that 34 states + DC have legalized ‘medical’ marijuana to-date and 4 states + DC have legalized recreational use, regardless of who is on your border, you’re going to have to be concerned.”
Irrespective of the various states’ medical marijuana laws, federal laws keep the roads clear—at least at the moment—for employers that prefer to establish an outright banning policy against marijuana, whether an employee needs a medical leg up or is just looking to enjoy some high times. Legal advice is once again encouraged.
Randall uncovered some of the nuances of this guideline item when he commented that:
“With the proliferation of state laws permitting medical marijuana usage, which seemingly are in contravention to court decisions permitting adverse employment actions against employees who are caught with marijuana in their system, employers must be mindful of the challenges posed by lawful medicinal marijuana. Employers must, at a minimum, ensure that despite the legality of medical marijuana off duty, they satisfy their obligation to provide safe workplaces under OSHA’s General Duty Clause and recognize that they face a host of other liabilities posed by impaired employees.”
Randall also recommended that employers and their legal counsel keep a close eye on developments, particularly in the case of Brandon Coats v. Dish Network, LLC, 2014 Colo. LEXIS 40, which is currently pending before the Colorado Supreme Court. As Pew noted, Colorado is “ground zero for figuring out the implications of legalized marijuana.”
To enhance an employer’s ability to leverage workers’ compensation statutes that permit the payment of reduced benefits when a worker is injured while drunk or high on illegal drugs, the guidelines focus on evidentiary requirements and specifically recommend that employers collect two samples and engage the expertise of a Medical Review Officer.
An employer’s workplace drug program must rest upon carefully defined policies and procedures that give supervisors and human resources personnel crystal clear criteria to follow when identifying impairment, referring suspected impairment for further evaluation and taking follow-up action.
Learning and Training
The guidelines strongly encourage education for both employees and supervisors—at the time of hire and with regularity going forward—so everyone knows what to expect as far as their own obligations under a workplace marijuana policy. Baseline information should include teaching workers about the effects that marijuana use has on health, safety, behavior and performance and helping everyone to recognize the signs of impairment.
To emphasize the strongest possible commitment to a drug-free workplace, employers are encouraged to teach their workers well—especially in states that permit marijuana use—by disseminating government-produced materials that describe the drug’s detrimental effects and warn about dosage and the delayed impairment that occurs with edible marijuana products.
CH-CH-CH-CH-CHANGES (TURN AND FACE THE STRANGE)
As recently as only two score and seven years ago, serious discussion about guiding employers through the quagmire of legal and medical issues that are raised by the presence of marijuana in the workplace would have been unthinkable. Yet here we are, informing our understanding on the importance of developing a separate marijuana policy for the workplace that could very likely involve something other than outright prohibition. The challenge for employers will be finding a way to achieve clarity and consistency as they confront a veritable haze of emerging scientific evidence, developing laws and evolving public attitudes about the 420 of Bambalacha. The ACOEM guidance statement goes a long way towards preparing all of us for certain inevitabilities.
The last word belongs to Pew who said it best when he declared:
“I personally think this should be required reading by General Counsel and Human Resources at every employer, especially in states where legalization has already occurred but even for those where it isn’t because it’s coming. Clear and proactive policies are absolutely required, and those can only be created by knowing every aspect of Federal laws and their intersection with individual State laws (and not just your state, but surrounding states). To quote Facebook, ‘it’s complicated.’”
1. See also, State Marijuana Laws Map current as of April 17, 2015, available from www.governing.com and interactive chart with summary of state marijuana laws available from www.ProCon.org.
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