How will changing marijuana laws affect your company?

David J. Fletcher, MD

Medical marijuana is legal in 31 states and the District of Columbia. This equates to 62% of the states in the United States. Recreational marijuana is now legal in 10 states plus the District of Columbia as well. The times certainly are changing. Many companies are asking “Should our substance abuse policies be changing too?”

Will Your Company’s Substance Abuse Policy Go to Pot?

Illinois is one of the many states that has found itself in an interesting position. Medical marijuana is legal. Cannabis for recreational use is not yet legal but may become legal in the future.

Company leaders across the state find themselves in the weeds when it comes to their substance abuse policies. Should they continue to test for marijuana use and discipline employees who test positive, or should employees be able to use marijuana in their off time with no repercussions?

Pot Versus Alcohol

The age-old argument for those in favor of marijuana use is: if alcohol is legal marijuana should be too. While both alcohol and cannabis impair cognitive abilities, comparing the two is a bit like comparing apples and oranges.

Both alcohol and marijuana cause a decline in cognitive abilities. However, THC the psychoactive ingredient in marijuana is stored in fat cells and not in the bloodstream like alcohol.

Because THC is stored in fat cells it becomes nearly impossible to establish a reliable link between the amount of cannabis used and a person’s level of cognitive impairment. Some states have set a limit on the amount of THC a person can legally have in their bloodstream.

For example, Illinois has adopted the five nanograms of THC per milliliter in blood as the standard of impairment, similar to Colorado and Washington state. While this 5 nanograms TCH level may seem to match the 0.08 blood alcohol content intoxication levels, there is no real science behind this arbitrary level of impairment.

There needs to be additional studies to determine a way of detecting if someone’s driving or work performance is impaired by marijuana use.

To Test or Not to Test

As medical marijuana and CBD use becomes more widespread, many companies are choosing to simply forgo the marijuana test on a standard drug-screening panel.

The choice to test or not to test may come down to corporate culture. Organizations with a high degree of turnover may choose to ignore THC or forgo a drug test altogether to meet their continuous demand for employees. Impairment and mistakes could ultimately mean the loss of life and, ultimately, your company has to decide if it’s worth the liability. Since THC does alter an employee’s mental ability on some level, companies need to factor in what is at stake.

Also, as in all employee policies, consistency is critical. For example, your front-office keyboard warriors who drive a computer screen for 40 hours a week should be held to the same standard as your drivers operating trucks on our highways. If you have different policies for different employees, you could potentially get into legal hot water.

Here’s what we recommend

Hold to your policy. You can certainly choose to update your substance abuse policy to reflect the changing times or your changing culture; however, my advice is that you hold to your current policy regarding marijuana. Regardless of varying measurements from state to state, marijuana may still negatively impact performance for 24-36 hours after use. Even if marijuana becomes legal in Illinois, you will not tolerate usage.

Like workers who legally use alcohol, impairment with marijuana still should be a major safety concern in your workplace. Your policy should state that recreational and medical marijuana use will not be tolerated due to the patient safety and sensitive nature of any employee providing health care.

Treat it like all narcotics and other controlled substances. Make sure your policy reflects that employees must come forward if they are using controlled substances and you reserve the right to send an employee for a fitness-for-duty evaluation to maintain workplace safety.

Work injuries should require drug and alcohol testing. Intoxication in the workplace can still be a major issue. If a mishap or accident occurs, OSHA still gives employers the right to conduct a drug screening to see if intoxication could have been the catalyst for the accident. Read OSHA’s clarification here.

Now, the question of CBD and whether your company should be testing for this marijuana related compound. Read my next blog here.