A drug that helps many workers relax sure is making a lot of LBM dealers nervous these days.
Across the nation, states are lowering barriers to marijuana use. Indications from bellwether states suggest that the drug—already used by an estimated 22.2 million Americans, roughly 8.3% of the population aged 12 and over—will become even more popular. At the same time, however, federal rules outlaw the drug for commercial truck drivers and dealers with federal contracts. U.S. Attorney General Jeff Sessions wants to institute a crackdown on pot use. Combine these issues with fears about the drug’s potential impact—particularly in its new, more powerful state—and it’s understandable why employers are struggling.
“I’m very busy,” says Kathryn Russo, an attorney in Melville, N.Y., for the Jackson Lewis law firm who specializes in drug and alcohol testing. “Employers in every industry are confused and really don’t know what to do. The marijuana situation is worsening. It’s growing more confused by the day.”
“Everyone’s level of concern better be elevated,” says David Flanagan of Viking Lumber, which has nine yards in Maine.
Amid that confusion, one thing remains clear: Supplying materials, building components, and installing products can be dangerous work. But how much more dangerous is it if you increasingly have pot-smoking crewmembers who could be, as a roofing company owner put it, “one bubble off of level?” The answers are complex and often get clouded by one’s perceptions.
What’s Legal Where?
According to the National Organization for the Reform of Marijuana Laws (NORML), possession and personal use of marijuana are legal in Alaska, Washington, Oregon, Nevada, California, Colorado, Maine, and Massachusetts, plus the District of Columbia. Other states have reduced penalties for possession to misdemeanor levels. And pot can be used legally for medical purposes in 29 states and D.C. Those numbers look likely to grow dramatically. Numerous states have initiatives in the works or up for debate that would permit medical marijuana usage or legalization.
Credit these changes to strong public support for legalizing marijuana. CBS News reported in April that 61% of Americans surveyed think marijuana use should be legal, up 5 points from last year, while 88% favor medical marijuana use.
About the only place where attitudes about marijuana are getting tougher is at the U.S. Department of Justice. There you’ll find Attorney General Sessions calling pot a “very real danger” and declaring “good people don’t smoke marijuana.” Federal rules on pot use apply for all commercial truck drivers. You can’t carry weed across a state line, even if both states allow possession. Pot is a Schedule 1 drug, meaning it has no federally accepted medical use and carries high potential for abuse. And the banking system is barred from serving the cannabis industry, so builders and building material suppliers in areas with robust marijuana businesses find themselves forced to accept huge wads of cash from customers.
“I don’t think America is going to be a better place when people of all ages, and particularly young people, are smoking pot,” the Huffington Post quoted Sessions as telling reporters in February. “I believe it’s an unhealthy practice, and current levels of THC in marijuana are very high compared to what they were a few years ago, and we’re seeing real violence around that.”
Case law is evolving and varies by jurisdiction. Many states wrote language into their pot laws declaring that employers retain the right to maintain a safe workplace. Things can get tricky, however, when medical marijuana or the Americans with Disabilities Act is involved. In Rhode Island, a Superior Court judge ruled in May that a fabrics company discriminated against a woman when it rescinded the offer of a paid internship because she participated in the state’s medical marijuana program and said she would be unlikely to pass the mandatory pre-employment drug test. The judge concluded the woman’s civil rights were violated because that state’s medical marijuana law protects cardholders from discrimination in employment.
“The law is vague, to say the least, and I know that when the law is vague, it doesn’t stand up well to being challenged," says Wendy Scribner, human resources director at Hancock Lumber, based in Casco, Maine. Last year, her state voted to permit recreational use and allow retail sales. Since then, Hancock Lumber decided to stop automatically disqualifying most job prospects if they tested positive for marijuana or had a medical marijuana card.
"We do not care to spend money needlessly for something we do not know would win or lose in court," Scribner says. At the same time, you can go to hotbed states like Colorado and still find dealers that will fire workers who test positive.
What’s the Fear?
Quest Diagnostics, which does more than 10 million workforce drug tests annually, reported in May that the positive response rate for marijuana in its oral fluid tests rose nearly 75% in the general U.S. workforce, to 8.9% of all tests in 2016 from 5.1% in 2013. On urine tests—the most popular method used—the positive rate was just 2.5% in 2016.
Barry Sample, senior director of science and technology for Quest Diagnostics Employer Solutions, said the oral fluid test can spot THC (the primary intoxicant in marijuana) within about 36 hours of use, while urine testing is good for roughly 48 hours. Quest says fluid test numbers may be a more relevant indicator to employers because a urine test is easier to cheat. There’s also a hair test, which can spot marijuana use over the past 90 days. That hit rate in 2016 was 7.3%.
The increase was even more pronounced in states with looser strictures on pot, Quest notes. Colorado's rate for urine tests rose to 2.9% in 2016 from 2.6% in 2015. Washington state, which also permits recreational marijuana use, saw its number of urine tests with positive results from pot rise to 3.1% of all cases from 2.8%.
Keep in mind that these are rates for the general worker population. Truck drivers and others in federally mandated safety-sensitive jobs had a 0.8% positive rate for marijuana in 2016. While low, that’s up from 0.7% one year earlier.
Roughly 2.3 million Americans have medical marijuana permits, according to one ongoing tabulation by a pro-pot group. In both Maine and California, 3.8% of the population have cards.
And there aren’t just more users: What they’re using is more powerful. The University of Mississippi’s National Center for Natural Products Research says the percentage of THC in marijuana averaged 3% in the 1980s but had increased to 12% by 2012. Today “you can easily find flowers well above 30% THC potency” in some states, the MerryJane.com blog reports.
Jo McGuire, a Colorado resident and co-chair of the Marijuana Education Committee of the Drug and Alcohol Testing Industry Association, toured a plant where the owner claimed his weed tested at 33%.
“They’re GMO-ing this stuff to death,” McGuire says, using the acronym for genetically modified organisms. Organizations like the National Institute of Drug Abuse say those types of levels, plus the popularity of “dabbing,” in which one smokes or eats THC-rich hash oil, “raise concerns that the consequences of marijuana use could be worse than in the past.” Roughly 9% of people who use marijuana today become dependent on it.
The Workers’ Comp Fear
Then there are worries that more stoned workers will push up workers’ comp rates, particularly at companies with a large workforce. However, there’s scant evidence the construction industry has been plagued by marijuana-induced accidents.
Pinnocol Assurance, which handles workers’ comp coverage for 60% of all Colorado businesses, reports claims have been dropping steadily in the state since 2011, the year before personal pot use became legal. Oregon, another permissive state, has had similar experiences. And an Oregon government agency’s study of workers’ compensation premium rates in every state finds the median comp rate nationwide in 2016 was virtually the same as it was two years before.
For years, researchers have reached contradictory conclusions on how strong the link is between marijuana use and on-the-job injuries. In 2009, the RAND Center for Health and Safety in the Workplace published a review of academic studies since the 1990s. It concluded that there is only a "relatively small" association between substance abuse and on-the-job injuries. RAND called substance abuse "one of a constellation of behaviors exhibited by certain individuals who may avoid work-related safety precautions and take greater work-related risks.” Researchers have labeled this group the “deviance-prone.”
Anti-pot groups cite statistics from sources like the Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA) that said Colorado’s "marijuana-related" traffic deaths increased 48% in the 2013-2015 period compared with the previous three years, while all traffic deaths rose 11%. Meanwhile, average annual visits to Colorado hospital emergency departments that are believed to be related to marijuana increased 49% in 2013-2014 from 2011-2012.
But a commentator for Forbes who’s far friendlier to pot notes that “marijuana-related” traffic fatalities and hospitalizations only means marijuana was found in those people’s systems after the fact. It doesn’t necessarily mean marijuana was responsible, Jacob Sullum writes. The increases could just mean there are more users and more drug tests.
The Trouble with Tests
The high produced by smoking marijuana starts with the first tokes, peaks in about an hour, and typically lasts three to four hours, though it still can impair as much as six hours later, according to a 2015 guidance statement by the American Association of Occupational Health Nurses and the American College of Occupational and Environmental Medicine (ACOEM). As a result, tests that can detect marijuana’s presence 36 to 48 hours after its use can’t prove that a worker who smoked pot on Saturday night was impaired on Monday morning.
“[T]here is little information on how accurately a positive pre-employment test may predict use after employment, and drug testing will not necessarily capture patterns of drug-using behaviors that may influence occupational injuries,” the RAND study said.
So, should you keep testing for pot? You are allowed to do so, and companies on federal contract are required to run a drug-free workplace. But an increasing number of companies have stopped bothering with tests. The Mountain States Employer Council found in a 2016 survey that 64% of 609 Colorado employers did pre-employment testing for marijuana, down from 77% in 2014.
On the other hand, McGuire believes it makes economic sense to keep testing. “According to the Labor Department, 40% of workplace fatalities are drug-related,” she says. “If there’s a serious accident, injury, a fatality, that’s going to cause a payout, are you willing to absorb that 100% rather than allowing the possibility your employee might be at fault?”
As for Russo, “I think employers should continue to test for marijuana … for employers who have dangerous workplaces,” she says. “But if you get a positive result and they have a medical marijuana card, consult with your lawyer.”
How to Start
At the very least, ACOEM and the nurses group say, “The best practice for employers is to begin with a clear written policy regarding chemical use and impairment.” The policy should include guidelines establishing when an employee is regarded as fit for duty. As part of this effort, you may need to be able to call on a medical review officer; that’s a physician who can assess a candidate’s fitness.
Do these things as well:
- If you don’t tolerate marijuana use by anyone at any time, be willing to conduct random tests of current workers.
- Consult a lawyer who knows state employment law.
- Keep up with current and prospective rules on pot. (NORML.org has extensive state-by-state listings.)
- Tell employees whether you have the right to conduct searches.
- Make sure workers know the consequences of violating policies—particularly if they fail a drug test and especially if they don’t have a medical marijuana card.
“I really believe in second chances and rehab so that people can work successfully,” McGuire says. "We have to stop thinking in extremes and behaving as if extremes are the only option.”
Above All Else, Be Vigilant
Either you or the local supervisor should visit the work site first thing and scan the team for signs of impairment. Use your eyes, ears, and nose to detect warning signs. Altoona, Pa.-based Your Building Centers created an “Observed Behavior Reasonable Suspicion” form to help justify a decision to require an employee to take an alcohol or drug test. The form covers nine areas, including walking/balance (with checkoffs for items like “staggering,” and “sagging at knees”), speech (“shouting,” “slurred,”), eyes (“bloodshot,” “droopy”), and breath (“marijuana odor”). You can even denote whether the person is chewing mints.
Hawaii-based HPM looks to supervisors and coworkers to spot potentially dangerous behavior at work. “Be with them,” says HR generalist Gretchen Magnuson. “If you’re regularly alongside them, you can begin to notice ‘off’ behavior.”
Second, show you care. “With my own company, I don’t believe anybody has any issue [with drugs],” says Tod Sakai, owner of a remodeling company in Kent, Wash., and head of the Remodelers Council of the Building Industry Association of Washington. “Part of the reason why I know with my guys is that—and this isn’t a cliche—they are my family. I can be joking around just like any other guy on the jobsite. And, having that relationship, if they’re going to have surgery on their toe, I’ll say, ‘Don’t get that Percocet crap. Take Tylenol for a few days.’ ... If you care about them, you’ll ask.”
Third, separate politics from safety. Society may press you to not interfere with workers’ personal time, but most laws also affirm that what those workers do privately can’t get in the way of their work.
Rethinking Reefer Madness
You could argue that employers should chill over pot use and worry more about the age-old scourge of liquor and the new crisis involving painkillers. What makes these times different for marijuana, perhaps, could lie both in labor trends and in a generational gap.
Start with labor. Time was, there were enough people looking for work that you didn’t sweat finding job candidates who were clean and sober. But when the unemployment rate is as low as Colorado’s—just 2.3% in April vs. the national rate of 4.4%—and our nation has this century’s lowest ratio of job-seeking people to job openings, there’s wide belief that something’s gotta give.
Also, lots of boomers viewed their first experiences smoking pot as outlaw acts of defiance, a way to make fun of the attitudes that inspired the 1936 cult film Reefer Madness. To boomers, getting stoned was about enjoying the trip, not escaping physical pains or the anxieties of life. Those benefits didn’t get noticed until much later, when smokers were aged enough to have pains and be anxious. At the same time, attitudes about personal freedom have flowered.
And so with marijuana today, as a 1974 Doobie Brothers album cover put it, What Were Once Vices Are Now Habits. Where we go from here is a trip that we’re all likely to be on for quite a while.
Read more:* Resources to help address drug use in the workplace
* Dealers in pot-growing country have a weighty problem--getting paid in cash
* Editorial: Is the fear over looser marijuana laws a tempest in a toke?
* How opioids affect the construction industry
