Last updated: May 25, 2020
The STATES Act (S.1028/H.R.2093) may change the way everyone views marijuana legalization because it will turn marijuana reform over to the states. The federal government will agree to the laws of the state and remove it from the Controlled Substances Act.
If this happens, marijuana becomes legalized at the federal level and it will be completely removed from the federal DOT drug testing panels. That means pilots, ship captains, rail road engineers, truck drivers, etc. will be able to do their job while under the influence of marijuana.
I’m sure you can see how this creates a serious safety issue, both in the workplace, as well as for the general public.
That certainly puts a new spin on things—for everyone.
To test or not to test
To-date, the debate is whether or not an employer should continue to drug test for marijuana in states where it is legal for medical or recreational use. Unless federally regulated by the DOT or some other entity, employers are free to determine which drugs they include on their employee drug tests.
Of course, many employees in these states feel employers should remove marijuana from the test panel. The fact that you can legally drink alcohol is a strong argument used by pro-marijuana advocates. Employees realize that drinking on the job is unacceptable. Testing for alcohol intoxication, if there is reasonable suspicion or in the event of an accident, does not cause an HR issue.
In today’s culture, smoking marijuana is becoming less popular. Consumers are using vaping oils or wax. The purchase of edibles is also on the rise. When consuming edibles, the THC does not take full effect for a couple of hours. This delay poses another concern for employers to consider.
The NDASA discussed the possibility of creating a “safety carve out” likened to alcohol. The details are yet to be determined. However, marijuana use causes impairment. It stands to reason that if someone exhibits signs of use on the job, they should be tested immediately.
A solution, other than removing marijuana from employee drug tests, must be found. Even though it is legal to use marijuana in some states, working under the influence of drugs is not safe. Ever.
Inhibitions regarding impairment
THC affects the executive functions of our brain. These are attention, concentration, decision-making, impulsivity, inhibition, reaction time, risk-taking, verbal fluency, and working memory. The psychomotor functions affected by THC are movement and coordination, manipulation, and dexterity.
However, being in control of all of these functions is linked to safe job performance.
Currently, it is believed that using marijuana impairs a person for about two hours. You can detect THC in the breath for roughly the same length of time. The news that a marijuana breathalyzer is nearly on the market is encouraging for employers. This tool will become invaluable to employers, drug testing companies, and law enforcement. It will immediately detect when someone is under the influence at any given moment.
What if the effects of marijuana impairment last longer than it can be detected in the breath? It seems continued studies regarding THC impairment bring more cause for concern.
- Single-use impairment may last up to 24 hours.
- Chronic users have exhibited signs of impairment while completing complex tasks weeks after discontinuing use.
- Use shows persistent fMRI changes in some regions of the brain.
Employers have every right to be concerned about the possibility of having an employee on the job who is under the influence of THC. Even if ensuring that maximum workplace safety is the only goal, the fact that users may be affected long after use is sobering.
If that is the case, banning THC use at all times by those employed in the safety-sensitive industries is something to consider. Employers in other sectors may choose to make a judgment call regarding how much risk to tolerate regarding marijuana use off the clock.
To each their own?
In theory, allowing state regulation of marijuana legalization and reform sounds like a solid plan. However, each state government varies in its plan for medical and recreational legalization. This includes how it affects the business owner.
Therein lies the rub.
- A Nevada Assembly Bill (AB133) will allow employees to test themselves after failing a drug test. They can dispute a positive drug test within 30 days of employment. The bill will allow a blood test to challenge the urine results. The reasoning is that blood tests determine a more accurate impairment.
- The City of New York placed a ban on pre-employment testing for THC. No. 1445-A. It will take effect in 2020.
- Arrested in the magical kingdom because she had CBD oil in her purse, a great-grandmother brought suit against Disney.
- In 2017, the Massachusetts high court ruled that a worker could sue her employer for discrimination after she got fired for a positive marijuana drug test. She was a registered medical marijuana user.
- Numerous state prosecutors have made it a standard policy not to prosecute marijuana violations.
- Employees using CBD products can test positive for THC.
The list continues, but you get the point.
Depending on the state you reside in, the varying degrees of leniency regarding employee marijuana use can wreak havoc on the workplace. Employers need to check the laws in their state and consider whether or not to change the company’s drug-free protocol. Moreover, having an HR specialist look over your policies is an option, too.
Currently, marijuana is classified as a Schedule 1 drug by the US Federal Government. They say it has no medical purpose. It also has a high potential for abuse and safety concerns. Employers have every right to continue testing for THC in the workplace.
However, marijuana reform is progressing on a national level. Moreover, if the progression continues as planned toward state governed marijuana laws, will it ultimately impact employers that are regulated by the DOT?
Inconsistency in the laws regulating employers state by state is not the only issue at hand. If passed, the STATES Act will lay the groundwork for employees to fight for expanded rights to use pot.
It is time for every employer to take a hard look at marijuana reform in our country and how it pertains to their business.
NDASA and Smart Approaches to Marijuana (SAM) Action are getting the word out! They began a campaign urging business owners to contact their state representatives and senators. Alert them to the problems that you foresee for your business if the STATES Act becomes law.
I implore you to write your Representatives and Senators. Tell them your thoughts about the impact the STATES Act would have on employers and the drug testing industry as a whole.
Don’t delay! Do it today!