Although still illegal under federal law, the prescribed use of marijuana for medical care is now protected from prosecution in fourteen states. In this rapidly evolving yet conflicted legal reality, the design and implementation of effective drug-free workplace programs faces new challenges.
Workplace Drug-Test Result Terminology
A comprehensive drug-free workplace policy indicates what substances are tested for and the cutoff levels (the amount of drugs or metabolites in a specimen) that will trigger further review.
Negative drug test: A result that indicates that a specimen did not exceed specified cutoff levels.
Non-negative drug test: The initial test result was at or above the specified cutoff levels and will require further review to determine the cause of the result. A non-negative result can also mean that a specimen was adulterated (tampered with), substituted or invalid.
Positive drug test: A result that indicates that a specimen exceeded specified drug or metabolite cutoff levels. The result has undergone review and has been verified/confirmed by a medical review officer.
“In general, medical marijuana laws are intended to limit protection to patients with serious illnesses such as cancer, AIDS and multiple sclerosis,” says LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni. “Currently, medical marijuana laws in most states allow patients to grow, possess and use marijuana if prescribed by a doctor. Caregivers are also authorized to assist the patient to grow, acquire or consume the drug. But medical marijuana is clearly not intended for everyday aches and pains.”
In October, 2009, the U.S. Department of Justice announced that it will not be a federal priority to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana.
In January, New Jersey became the most recent state to legalize medical marijuana, adopting a bill that is significantly more specific and restrictive than laws in most other states. The law limits the conditions – to a set list of serious and chronic illnesses – for which marijuana can be prescribed. It bars patients from growing their own marijuana and from public usage, and it allows distribution only through six state-monitored dispensaries. Some commentators believe New Jersey’s program will become the model for other states. As of December 1, 2009, fourteen additional states had pending legislation or ballot measures to legalize medical marijuana.
What do medical marijuana laws mean for employers and employees?
Because appropriate medical use of marijuana is now protected in a growing number of states, workplace drug-testing programs must be administered with both the patient’s rights and workplace safety in mind. Though state laws vary in their specifics, they generally recognize that the inappropriate use of prescription drugs at work – or their use at home with lingering presence at work – can be unsafe, and they allow employers to guard against both this danger and illicit drug use through comprehensive drug-testing.
“For employers, a strong, clear policy is the cornerstone of any successful drug-free workplace program,” says Sabitoni. “A comprehensive policy details which substances are tested for, their cut-off levels, what workplace behavior is unacceptable and what the consequences will be for violations. All members – whether they use prescription medications, including medical marijuana, or not – should familiarize themselves with and adhere to their employer’s drug-free workplace policy.”
Generally, a comprehensive drug-free workplace program will include a Medical Review Officer (MRO) component. This person reviews drug test results that are “non-negative,” meaning results that are at or above the cutoff level and require additional review. It is the goal of the MRO to speak with the employee in question about the test result to see if he or she has an acceptable, approved reason for the result.
While employees may be legitimately using medical marijuana, the law in the state in which they work will dictate whether or not their employer has to accommodate the use. State laws dictate whether an employer will incur liability for refusing to hire or discharging an employee who has a positive drug test due to the use of medical marijuana. Currently, most state statutes say that employers do not have to accommodate the use of medical marijuana. Because of variations from state to state, however, it is important that employers use special care and get sound legal advice when deciding how to handle these issues.
It should be noted that the use of medical marijuana by any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations is not permissible. The Department of Transportation – through its “modal” agencies – regulates truck and bus drivers, railroad employees, airline employees, transit system workers, pipeline and hazardous material workers and certain workers on navigable waters.
With more states likely to soon adopt medical marijuana laws, the issue will become more prevalent on jobsites, and employers should be proactive in deciding how to handle it. When developing or reviewing a drug-free workplace policy, it is important to remember that the construction industry has one of the highest rates of injuries and fatalities.
It is essential that everyone on a jobsite be able to perform his or her job safely while also adhering to the law. If individuals are behaving in ways that appear unsafe, the behavior should be addressed and, if necessary, the worker removed from the site. At the end of the day, safety is the most important thing.