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A Foggy Path: Increasing Marijuana Laws, Surging Positivity Rates, and Resulting Workplace Ambiguity

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It’s probably no surprise that as marijuana laws continue to sweep through various states from coast to coast, employers are finding increased marijuana use among their employees. The struggle to find the balance between constantly evolving laws and maintaining a drug free workplace rages on. These challenges don’t merely rest with hiring, though. They also include compliance implications and impacts on workplace policies. And now, it appears, these challenges may increase even further.

Marijuana Numbers on the Rise

According to new research from Quest Diagnostics, more than six million general workforce marijuana tests administered showed increases in overall workplace tests, safety-sensitive tests, and post-accident tests. The positivity rate for all marijuana tests from the U.S. workforce was 4.3% in 2022, up from 3.9% in 2021, while for workers in safety-sensitive jobs, positivity shifted upward from 1.5% in 2018 to 2.1% in 2022. With regard to post-accident marijuana tests, the long-term results were staggering.

According to a statement released by Quest, “In 2022, post-accident marijuana positivity of urine drug tests in the general U.S. workforce was 7.3%, an increase of 9% compared to 6.7% in 2021. The new peak follows a steady increase in post-accident marijuana positivity every year from 2012 to 2022. In that 10-year time frame, post-accident marijuana positivity increased 204.2%.”  The statement also implied that this rise is not likely coincidental. Rather, it aligns precisely with the trend of states legalizing marijuana, as the first states to do so, Colorado and Washington, both did in 2012.

Challenges Faced by Employers

The problems associated with these higher numbers are clear to most. For years, employers have been facing challenges due to the impact of marijuana use on employees and particularly, the occurrence of workplace accidents. Studies have also indicated a higher chance of errors in judgment resulting in workplace accidents when the person involved is impaired by marijuana. To that end, a National Safety Council white paper recommends a zero tolerance policy for marijuana in safety-sensitive positions. Similarly, OSHA advocates for post-accident drug testing as a “legitimate part of a root cause analysis to determine the cause of an accident.” Once again, the inconsistencies between states’ laws and between state and federal policy renders the entire situation hazy, at best.

However, employers have more to be concerned with than marijuana related accidents. Marijuana use among employees could also damage a company’s brand, increase rates of absenteeism, compromise safety, or cause significant mistakes that may otherwise lead to increased costs and inefficiencies, and consequently, decreased productivity and profitability. And then there is the issue of their own internal policies—what is allowed, what isn’t, and what a positive marijuana test really means. In fact, one of the biggest challenges is the lack of scientifically validated drug tests for marijuana that can verify if an individual was impaired at the time of an accident or even at the time of testing.

State Law Challenges

States continue to pass laws to legalize marijuana. Delaware’s law recently became effective just this past April, while Maryland’s new law is next to become effective on July 1st. And they all have their own variances. The growing number of state and local marijuana laws continues to further complicate matters, making it increasingly challenging for employers to take action based on positive marijuana test results, if tests are even allowed.

These legal requirements not only affect the onboarding and hiring processes but as previously discussed, also have potential implications for compliance and other workplace policies. For example, in certain states, such as California, employers will be prohibited from disciplining or terminating employees for their off-duty marijuana consumption as of January 1, 2024. But in Rhode Island, employers are not required to accommodate the use or possession of marijuana in the workplace, nor are they required to accommodate employees being under the influence of it.

Other jurisdictions don’t allow marijuana testing in certain circumstances. For example, New York City, Nevada, and Philadelphia have all banned pre-employment marijuana testing. And while Washington D.C.’s law doesn’t similarly ban testing, it does prohibit employers from refusing to hire, terminate, suspend, fail to promote, demote, or penalize an applicant or current employee based on the individual’s use of cannabis.

In an attempt to clear some confusion, in September of 2022, New Jersey provided “Employer Guidance” regarding reasonable suspicion of marijuana impairment in the workplace. While the guidance provides when and how New Jersey employers may test employees for cannabis and potentially take adverse employment actions based on impairment, the overall consensus is that it does little to alleviate the ambiguity overall.

Employer Tips

With the fog continuing to thicken around marijuana usage in and around the workplace, employers must remain diligent. Unfortunately, a clear path does not exist, no matter where in the country the employer is located. And now, with the dramatic rise of remote employees, employers must continually stay abreast of legal changes in other states. The following tips may help minimize risks:

  • Regularly monitor the laws being passed in various jurisdictions.
  • Have a clear, written drug policy of which every employee is aware.
  • Update the policy as needed based on new laws being passed.
  • Hold regular safety meetings.
  • Educate managers and staff about the risks associated with impairment.
  • Train managers regularly on the signs of impairment and what steps they should take in those instances.

The ambiguity surrounding marijuana in the workplace is here to stay for the foreseeable future. But if employers remain adaptable and vigilant in monitoring the evolving landscape, it will help to ensure that they remain compliant … and safe.

Hire Image strives to be your trusted background screening resource and partner in 2023 and beyond. For more information on Medical or Recreational Marijuana, and whether they affect your state, visit our resource guide at the Hire Image Resource Library. If you have any questions about how to best protect your business, employees, and customers, please reach out at contact@hireimage.com.

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