Workplace Cannabis Policies: A Moving Target (2024)

Abstract

Keywords: cannabis, drug testing, THC, workplace

Introduction

The Cannabis sativa plant produces cannabis in the form of its dried leaves, which can be smoked, and contains the psychoactive substance delta-9-tetrahydrocannabinol (THC), well known for causing euphoria, increased appetite, and decreased anxiety, but also sometimes causing anxiety, decreased motivation, and even psychosis.¹ About 9% of adults and 17% of teenagers who experiment with cannabis will meet clinical criteria for dependence on the drug within the year.² Most relevant for employers, however, are the acute effects of THC, which could affect workplace safety and productivity. Although some studies have been attempted, there is little reliable data on the actual effects of cannabis use on workplace productivity and safety, in an addition to the effects of workplace employee assistance programs designed to help employees who have positive cannabis drug tests.

While many states are enacting laws in regard to the acceptable use, regulation, and decriminalization of cannabis, there is little guidance on how these changes should be reflected in workplace drug programs. As of August 2020, 33 states and the District of Columbia have approved the adult medical use of cannabis, with 11 states and District of Columbia going on to legalize recreational use.³ CBD, a nonintoxicating cannabinoid derived from the cannabis sativa plant, was made legal for sale nationwide by the 2018 Farm Bill,⁴ as long as the final product contains no >0.3% THC by dry weight. However, only one preparation of CBD is approved by FDA for sale as a medication: Epidiolex, an oral solution with approval for use only for three rare pediatric seizure syndromes.^5,6 Other than the exemption for CBD derived from low-THC sources as a supplement, and the FDA-approved Epidiolex, federal law still defines cannabis as an illegal and dangerous substance.

Given the legal situation in the United States, positive urine drug screens for cannabis will likely continue to rise, assuming employers continue to test. Overall usage of cannabis in the United States is steadily increasing (15.9% of Americans used cannabis in 2018, an increase over the previous year⁵) and employees and potential employees are understandably less concerned about a positive cannabis result, given the widely publicized, and successful, decriminalization and legalization efforts nationwide. Cannabis is the most commonly detected drug in the United States in workplace drug tests, at 4.4% of the more than 10 million tests done by Quest Diagnostics in 2018,⁷ the highest rate since 2004. This apparent lack of concern is unfortunate, since civil or employment law may differ substantially from the criminal statutes usually changed by legalization advocates: as one newspaper had it “Using marijuana is legal -but it can still get you fired.”⁸

THC-positive drug test results pose significant challenges to employers, especially regarding their obligation for maintaining a safe workplace, conforming to relevant law, and addressing the needs of employees who have a cannabis use disorder. Before the COVID-19 pandemic, the low U.S. unemployment rate required employers attempting to maintain a stable workforce to avoid unnecessary disqualification of employees or potential employees who use cannabis but either have no appreciable effects in the workplace or desire to stop their use of cannabis. It remains to be seen how the COVID-19 pandemic will affect employment statistics and the acceptance or nonacceptance of cannabis in the workplace.

Legal aspects aside, the issue is further complicated by a lack of clarity as to how employers should monitor for cannabis-related impairment, how testing should be performed, and what laboratory threshold—if any—determines whether cannabis caused or contributed to an impairment. This article will summarize the dynamic nature of cannabis-related laws, discuss challenges faced by employers, and propose a standardized approach to workplace cannabis programs.

The Present State of Workplace Testing

Workplace drug testing programs are common in both federally funded and private industries. Depending on the industry, drug testing may occur pre-employment, at random, or if impairment from an illicit substance, including cannabis, is suspected.⁹ The 1988 Drug-Free Workplace Act,¹⁰ which required all federal contractors and grantees to provide a drug-free workplace, served as an example for a comprehensive drug-free workplace policy, even for those businesses who were not obligated to comply with this law.

The drug-free mandate additionally applies to security or safety-sensitive positions within various industries, and federally mandated workplace drug testing programs must abide by a set of guidelines. This includes urine drug screening for a standard set of substances, usually THC, cocaine, amphetamine, MDMA/MDA, phencyclidine, and various opioids.¹¹ States and other local governments may also pass specific laws and regulations regarding employment drug testing, which adds an additional layer of complexity.

Owing to its Schedule I classification by the federal government, any detection of cannabis by a workplace drug program represents illegal use at the federal level. This is in contrast to private industries, where the specifics of cannabis testing are determined by a combination of company leadership, state law, and union negotiations. In fact, private industries have no legal obligation to provide a drug-free workplace or standardized approach to drug testing. This goes both ways, however. Even if medical and recreational use of cannabis outside of work is permitted by state law, because of its federal classification, private employers are not required to permit cannabis use on the job, regardless of laws promulgated at the state level.¹²

On-the-Job Effects of Cannabis Use

Since cannabis use is associated with behavioral phenomena that may affect worker performance, employers have an understandable obligation to prevent on-the-job impairment related to cannabis use. However, the parameters of cannabis's effect on workplace performance are in many ways unclear, and employees rightly demand clarity as to how exactly their after-hours use of a substance measurably affects their work performance.

Well-designed studies—most of them not in the workplace—have shown the putative acute negative effects of cannabis use, such as likely impairments in driving ability,^13,14 coordination,¹⁵ cognitive functioning,¹⁶ and overall motivation,¹⁷ all in a dose-dependent manner.¹⁸ However, the paucity of studies that specifically examine workplace behavior as related to cannabis suggests the need for further exploration of this important question. The studies mentioned below are mostly “proxy assessments,” which assess some measurable variables (such as drug test results, injury, and self-reported cannabis use) to prognosticate about broader effects in the workplace.

One study of 2537 prospective postal employees with positive pre-employment drug screens for THC¹⁹ showed a measurable—if minimal—increased susceptibility for job turnover, accidents, injuries, and workplace discipline. In addition, the mean absence rate for the THC-positive employees was 7.1% compared with 4.0% for those employees who had tested negative on their pre-employment drug test. Findings were similar for those employees who had tested positive for cocaine metabolites during the hiring process, although the cocaine users appeared less susceptible to job turnover.

In an assessment of self-acknowledged substance use and occupational injuries in a cohort of 3365 high school student employees,²⁰ alcohol users were nearly twice as likely to have had an injury at work (Table 1). Also, however, those who used cannabis had an increased risk of occupational injury directly related to the frequency of their use over their lifetime, an increased risk that was even more striking for those students who had used cannabis in the previous 30 days (Table 2).

In an extensive 2017 review of the literature by the National Academies of Sciences, Engineering, and Medicine on the health effects of cannabis,²¹ which also looked for any correlation between cannabis use and occupational injury, the authors reviewed six primary literature articles on the subject, including the study described in the previous paragraph. Because the articles were all quite different and had numerous limitations as to the definitions of cannabis use and occupational injury, the review concluded that “it was not possible to determine whether general, nonmedical cannabis use is associated with a clearly increased risk of occupational accidents and injuries across a broad range of occupational and industrial settings in the absence of other important risk factors.” Despite the suggestive data about a causal connection between cannabis use and workplace accidents, this sort of uncertainty will probably continue until the publication of larger, prospective surveys of occupational injuries and drug use, including cannabis.

Relevant Statutes

Relevant statues and case law on the subject of cannabis in the workplace reflect widely varying models across jurisdictions, in addition to legislators and judges' attempts to manage this conflict between employer and employees. Despite the clear and growing national movement to legalize and decriminalize cannabis use, statutes often do not extend workplace protections for employees who use cannabis, medically or recreationally. Even those states that provide some protection exclude from that protection workplace intoxication with cannabis, on-site possession of cannabis, safety-sensitive positions, and federally financed employment. These facts are often an unpleasant surprise to job candidates and employees who take a drug test fully expecting that their medical cannabis card will protect them from adverse job actions.

However, as of August 2020 laws 19 states prohibit employer discrimination against employees who merely use medical cannabis outside of the workplace.²² These states are Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Vermont, and West Virginia. (California and Colorado are notably absent from this list.) Arizona, Arkansas, Delaware, Minnesota, Oklahoma, and Rhode Island have laws in place that stipulate that the mere presence of THC in an employee's body does not indicate that the employee is impaired by cannabis.

In 2020, Nevada and New York City passed laws banning the disqualification of a job applicant for the presence of THC in a pre-employment drug test. The NYC statute specified the usual exceptions to the ban on using THC tests to avoid adverse employment actions—“safety and security sensitive jobs, and those tied to a federal or state grant.²³” Tellingly, however, the statute went on to list numerous and very specific examples of positions in which the new law would not provide coverage:

• - Police/law-enforcement officers.

• - Positions requiring construction safety training or OSHA certifications under New York laws.

• - Positions requiring commercial driver's licenses.

• - Positions involving the supervision or care of children, medical patients, or vulnerable persons as defined under New York laws.

• - Other positions with potential to significantly impact health or safety as determined under the regulations to be enacted or identified on the website of the department of citywide administrative services.

• - U.S. Department of Transportation required testing.

• - Testing required under federal contracts or grants.

• - Testing required under federal or state statutes; and

• - Testing required under collective bargaining agreements.²⁴

Relevant Case Law

There are numerous complex ethical and public policy questions that face our nation, especially the dialectic between the public policy good and the individual harm many see associated with cannabis decriminalization and legalization, in addition to the constraints on civil liberties implied in the prohibition of a widely used substance. There are rapidly changing cannabis-related U.S. federal and state laws, case law, and administrative protocols for employers and employees, and these laws are interpreted by trial and appeal judges who attempt to apply the relevant law to the facts at hand. Employees question whether medical cannabis recommended by a licensed physician will be exempted from the usual drug testing protocols. Employers must manage a rapidly changing set of legal obligations concerning safety-sensitive positions, potential Americans with Disabilities Act (ADA) lawsuits, confidentiality, and the long-lasting THC molecule in drug tests.

No employer must accept an intoxicated employee in the workplace, or one who uses drugs on the worksite. Up until the last several years, state courts have also delineated a general understanding that private employers may still terminate or decline to hire individuals who use cannabis for medical or recreational purposes. Public employers, however, are held more tightly to the expectation that only employees with safety-sensitive positions may be held to account for their off-hours use of cannabis. Courts have varied widely in their findings about the details of suspicion-less drug testing, certificates for medical cannabis use, and the definition of “safety sensitive.” However, a clear trend over the past 2 or 3 years has been for state courts to protect cannabis-using employees if they have a medical recommendation for that use. Although they do not necessarily have precedential value, the below cases demonstrate the legal system's initial resistance for allowing off-site use of cannabis for nonsafety sensitive jobs if it did not affect their work, and the more recent reluctance to sanction employees for off-site cannabis use.

In the 2008 Ross v. Raging Wire Telecommunications, Inc.²⁵ case, the California Supreme Court held that employers are not required to accommodate an employee's medicinal cannabis use irrespective of the Compassionate Use Act of 1996 (Health & Safety Code section 11362.5), which provides that persons using cannabis under the care of a physician are not subject to criminal prosecution by the State. The Court commented that the Compassionate Use Act does not grant cannabis the same status as a legal prescription drugs and noted that cannabis remains illegal under federal law, and therefore cannot be “completely legalize[d] for medical purposes.” This case showed typical judicial reasoning of the time, which differentiated medical cannabis from FDA-approved medication, and granted precedence to federal law over state law.

In a 2012 case where a medical-cannabis-using employee was terminated for his use of the substance, the Court focused on the fact that the Michigan medical cannabis statute does not regulate private employment.²⁶ Joseph Casias was by all reports a good employee at a Michigan Wal-Mart store, beginning as a grocery stocker and eventually working himself up to “inventory control manager,” even in being recognized as the 2008 Associate of the Year. He suffered from a pain condition for which he was prescribed Lorcet (hydrocodone and acetaminophen), but after he began smoking cannabis with a physician's recommendation under the rubric of Michigan Medical Marihuana Act (MMMA) of 2008²⁷ he was able to discontinue Lorcet and still had substantial remediation of his pain syndrome.

However, after a workplace injury in 2009, he was obligated to take a urine drug screen, which was positive for THC. He was terminated solely because of this result, and sued for wrongful discharge under the MMMA, but the Trial Court upheld the termination because—among other things—the MMMA was not seen as protective against termination for a workplace positive drug test result: “In contrast to what the MMMA does address—potential state prosecution or other potential adverse state action—the MMMA says nothing about private employment rights. Nowhere does the MMMA state that the statue regulated private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside the workplace ….”

In contrast to the above two cases, a 2019 New Jersey case, Wild v. Carriage Funeral Holdings, Inc., tracks the more recent, and lenient, judicial perspective on cannabis in the workplace, and the political support for that perspective.²⁸ A New Jersey Appeals court overturned a lower court's ruling that a business could summarily terminate an employee's position because that employee acknowledged being part of a legitimate, state-sanctioned medical cannabis program. The appeals court was later supported by a gubernatorial act that clearly demonstrated the executive branch's support of legalized cannabis and its use by duly-sanctioned employees.

Justin Wild, a licensed Funeral Director, was involved in a May 2015 motor vehicle accident while driving for his employer. When evaluated in an emergency department, Wild disclosed his medicinal use of cannabis, for which he had a license under New Jersey's “Compassionate Use Medical Marijuana Act.” Although he was not drug-tested in the hospital, his employer did not allow him to return to work until he had a drug test. That drug test—which was reportedly positive for THC—was used by his employers to justify his job termination because Wild (1) had not informed his employer of this medication use, and (2) the medication (cannabis) might impair his ability to function on the job. A lower court ruled in favor of the employer.

However, on appeal, Wild asserted that the reason he used medical cannabis, his cancer diagnosis, meant that he was treating a disability with an accepted medical treatment, and that he was being unfairly discriminated against. The appellate court agreed and overturned the lower court's finding, noting that that the Compassionate Care Act's statement that “nothing in this act shall be construed to require an employer to accommodate the medical use of marijuana in any workplace” had no bearing on cases brought under the LAD and that “… It would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer's termination of a cancer patient's employment by discriminating without compassion …” A subsequent piece of legislation signed into law by New Jersey Governor Murphy in July of 2019²⁹ underlined that, in New Jersey, (1) employers could not take adverse action against an employee who is a registered qualifying patient in the New Jersey Medicinal Marijuana Program, and (2) employees must be given the right to explain a positive drug test.

In a similar case in which a medical-cannabis-using employee prevailed against their employer,³⁰ Walmart was found to have discriminated against Carol Whitmire, who had a valid Arizona medical cannabis card for treatment of sleep problems. After a minor workplace injury to her wrist, Whitmire was seen in a medical clinic and given a urine drug screen that found THC at a level >1000 ng/cc. Although Walmart did not assert that the accident was Whitmire's fault, or that she had used or possessed cannabis on the job, Walmart did assert that “(her) positive drug test result for marijuana indicated that she was impaired by marijuana during her shift that same day.”

Whitmire was suspended, and then fired, on the basis of the positive drug test, and filed suit, alleging that she had been discriminated against in violation of state antidiscrimination laws. The Court agreed, reasoning that “without any evidence that Plaintiff used, possessed or was impaired by marijuana at work … it is clear that Defendant discriminated against Plaintiff in violation of A.R.S. SECTION 36-2813(B)(2) of the AMMA by suspending and then terminating Plaintiff solely based on her positive drug test …” The relatively high level of THC—“greater than 1000 ng/cc”—was neither presented nor refuted as a marker of workplace impairment.

A Workplace Cannabis Paradigm

In light of the above noted drug-testing and legal realities, a workplace cannabis policy must be constructed by a collaborative effort of addiction professionals, attorneys, and human resource professionals. The ultimate workplace cannabis policy should be compliant with relevant laws, protective of workplace safety and productivity, and helpful to the employees, yet still flexible enough to adapt to changes in the legal environment. Vital considerations for any comprehensive cannabis workplace program are medical cannabis, workplace safety, and the specifics of the testing itself.

Medical Cannabis

Cannabis use is often compared to alcohol use, and aptly so, as there are some similarities in how legislation regulating its prohibition, production, distribution, sale, and use have evolved over the years. One major difference is that alcohol has no medical indication for any medical or psychological condition. A more suitable comparison might be to amphetamine derivatives, such as those used in the treatment of attention deficit hyperactivity disorder. However, amphetamine is classified as Schedule II (high potential for abuse, but with accepted medical use) and has established efficacy and dose-response guidelines. Thus, in many ways, cannabis is in a class of its own. While there are three FDA-approved prescription cannabinoids with few treatment indications, cannabis on its own has weak evidence supporting its efficacy in use in the treatment of any medical or psychiatric conditions.³¹

Safety

In addition to loss of productivity, cannabis use on the jobsite is associated with significant risks and safety concerns. Since most safety-sensitive positions have some relation to transportation, most studies on cannabis impairment are centered on skills related to driving. Many of these skills are broadly applicable in the maintenance of a safe and productive workplace, and impairments in them could compromise safety and lead to on-the-job accidents or fatalities.³² In addition to cognitive impairment, it is also important for employers to recognize symptoms of cannabis intoxication. The “high” of cannabis intoxication is often associated with feelings of euphoria, relaxation, and giddiness, and the cognitive effects include disinhibition, disorientation, impaired concentration, impaired learning and memory, altered time and space perception, sedation, and impaired thought process and expression.³³ Frequent and persistent use does lead to physical dependence, with users developing tolerance and experiencing withdrawal on stopping use, symptoms of which include anxiety, irritability, restlessness, reduced appetite, and insomnia, among others.³⁴

Testing

Urine drug tests for cannabis, such as those used in federally mandated drug testing programs, do not detect THC but THC-COOH, which is the major nonpsychoactive metabolite of THC. THC-COOH takes several hours to show up in the urine and can be detected for months after consumption.³⁵ Routine urine testing cannot distinguish between current and prior use of cannabis, and is of limited utility in determining whether or not an employee is under the influence of cannabis on the job. Unfortunately, as of October 2020, there is no practical, accurate, and timely test for determining cannabis intoxication like there is with the use of the breathalyzer for alcohol. While many substrates for cannabis detection have been investigated (e.g., hair, oral fluid, sweat), measurement of plasma THC is the most accurate and reliable method to determine recent cannabis use, and its levels correlate with degree of impairment from cannabis in a linear fashion. Of course, plasma THC-COOH levels may be impractical assays in large groups of employees getting screened for drug use, so urine and saliva drug tests will likely remain the standards for the foreseeable future. Overall, the cost, invasive nature of the test, and infrastructure required for timely plasma THC testing make it less than ideal for the workplace. A THC level of 5 ng/mL has been used by some states (including Colorado) to allow the “permissible inference” that the driver was impaired for the purposes of for driving a motor vehicle.³⁶ However, this is a very low level and may not stand up to legal challenge, or even make the leap to being a reasonable marker in employment law. In addition, as with chronic alcohol users, chronic THC users can develop tolerance to the drug, thus demonstrating less actual impairment than intermittent users with the same THC level.³⁷

Recommendations

Before establishing a comprehensive workplace drug-testing program including cannabis, employers should consult with an addiction-knowledgeable occupational health physician, a labor attorney who is knowledgeable in the rules and regulations of drug testing as outlined by state and federal law, and human resource professionals who know the specifics of the business paradigm and have clinical referral sources for those employees who need them. A clear protocol should then be established, including definitions for the threshold of impairment that would trigger such a protocol. Note that depending on the location and industry of the employee, both on- and off-the-job use of cannabis may be prohibited. However, due to difficulties substantiating off-the-job reports, concerns about drug-related impairment usually result from observed behaviors while the employee is physically present at the worksite.

For the employee suspected of drug-related impairment, clear documentation of the signs and symptoms of that impairment are of utmost importance, followed by a prompt referral to the occupational health clinic. Here, the individual in question would be formally evaluated by a physician with relevant toxicology tests obtained.

After the evaluation, the individual in question would then be placed on leave until the tests are resulted and reviewed by a Medical Review Officer (MRO)⁸ and an addiction professional, who would determine whether a positive test was the result of illicit use or permitted use, and whether the subject is in need of treatment. Ideally, if the employer has chosen to accommodate those who are enrolled in a medical cannabis program, clear guidelines and protocols regarding indications for use, schedule of use, cannabis form used, and anticipated duration of use should be well-established beforehand and considered by the MRO. The ability of an employer to ban off-hour use will vary by state, usually in regard to case law and the state's stance on recreational and medical cannabis, which again emphasizes the importance of consulting with a labor attorney. Table 3 summarizes the aforementioned components. Such drug testing programs will likely be in flux as cannabis legislation continues to evolve, testing methods improve, and more is learned about the effects of cannabis on workplace safety and productivity.

Conclusions

Medical and recreational cannabis has become increasingly available and well accepted in the United States. The potential for impairment, intoxication, and withdrawal symptoms precipitated by cannabis, requires employers to consider how they will ensure workplace safety, remain in compliance with relevant law, and maintain a stable and effective workforce. Given the lack of data and guidance on the topic, this article has attempted to propose a workplace testing model. Most importantly, the workplace program should be a collaborative effort between addiction-knowledgeable occupational physicians, labor attorneys, and human resource professionals. Of course, there are several limitations, with the most problematic being the infrastructure and professionals required to implement such a program, which may not be feasible for many smaller companies.

Below is an outline for a cannabis workplace program with the relevant elements of a clear and widely disseminated mission statement, specific information about expectations of employees, information about the testing process, the availability of treatment, the consequences of a positive test, and a plan for return-to-work clearance.

More widespread use of alternative methods for the detection of recent cannabis use (such as via saliva or sweat) would improve the ease of testing. As cannabis further permeates the workplace, it is important that well-designed studies follow the effect of this substance on employees, the efficacy of workplace testing program, and the ability of those programs to satisfy the needs of both the employer and employee. Clearly, the currently available studies on cannabis in the workplace are lacking, particularly in comparison to the rate of legalization, and additional research is needed to address health and employee safety, both on and off the jobsite.

Abbreviations Used

Author Disclosure Statement

No competing financial interests exist.

Funding Information

This work did not receive funding.

Cite this article as: Hazle MC, Hill KP, Westreich LM (2022) Workplace cannabis policies: a moving target, Cannabis and Cannabinoid Research 7:1, 16–23, DOI: 10.1089/can.2020.0095.

References