By Evan Gurley
Many precast company managers are aware of the rapid movement to legalize marijuana both medically and recreationally. It’s debated at plants and job sites. It’s been featured across news headlines. It’s discussed among safety professionals. And no matter your stance on the issue, one thing is certain: It’s not going away any time soon.
Safety professionals know that the topic of marijuana will be a hot-button issue for some time as laws are changing constantly. As a business, many precast plants maintain the stance that they are drug-free workplaces. That is the policy, period. But, when it comes to recent marijuana laws and what that might mean for workplace safety, there are still questions yet to be answered. The language of each law varies, leaving all parties involved having to navigate a legal maze when it comes to employers’ and workers’ rights.
As of November 2014, there were four states and the District of Columbia that had voted to approve the legalization of marijuana. Another five states are expected to introduce ballot measures to legalize recreational marijuana in 2016: California, Massachusetts, Maine, Arizona and Nevada. And by the end of 2016, activists are expecting five more states to vote on legalization bills in their state legislatures. But that’s not all. Six other states are looking at creating or expanding medical marijuana programs or are vastly scaling back penalties for small-time possession. Ever since voters in Colorado and Washington allowed the sale of legalized marijuana in 2014, the push for marijuana legalization has become a popular nationwide effort.
In 2014, 36 state legislatures had bills under consideration to create new medical marijuana laws, to impose only a fine for possession of marijuana, and/or to regulate marijuana similarly to alcohol. Several of those proposals were enacted. Three state legislatures, Maryland, Minnesota and New York, passed medical marijuana laws this year, while Maryland, Missouri and the District of Columbia replaced possible jail time with fines for simple possession of marijuana.
At the federal level, marijuana is considered to be a schedule 1 substance – classification perceived to have a high potential for abuse and no medical value. Currently, the federal government argues that there isn’t enough evidence to prove that marijuana has a medical value. As a result of the schedule and the legal restrictions tied to the drug, it’s technically still illegal under federal law to use, own and buy marijuana – even in states where it’s considered legal.
Marijuana on the job
If an employer can prove a worker is impaired on the job, it can take action regardless of the residing state. That much is clear. It gets a little cloudy when a worker shows no impairment but tests positive for marijuana. Legal consultants suggest that precasters implement a zero-tolerance drug policy in the workplace, even when there is risk for litigation.
“It started way back when medical marijuana was legalized in Colorado; that’s when we first started to address the issue,” said Penny Hayward, president of Colorado Precast. “We knew it was coming. We, at that point in time, put it in our employee handbook that we were a zero-tolerance company and that did include medical marijuana.” However, that was challenged by an employee who wanted unemployment benefits.
“It took about six months or more to run through that challenge,” she said. “He was released with a medical marijuana card, but he never showed it to me. So, that ran through quite a few appeals and I took it all the way up to the Colorado Court of Appeals and we won.”
The federal government has said it will not prosecute people who abide by their state’s marijuana laws. As to whether employers can ban its use by workers, including those with prescriptions to use medical marijuana outside of the workplace for chronic diseases and conditions, the answer depends on each individual state. In some states, including Washington, Oregon and Michigan, judges have ruled on the side of the employers. In other states, including Minnesota, Arizona and Delaware, lawmakers have added specific protections for workers with medical marijuana prescriptions, protecting them from action by employers based solely on a positive test result, according to the National Safety Council.
In states where medical marijuana is legal, precasters should increase awareness and ensure they keep a closer eye on their employees. Get a visual on them. Be aware if they seem absentminded at work. Heightened awareness should be elevated to ensure a safe workplace.
In response to many states passing medical marijuana laws, the Department of Transportation issued a compliance notice regarding its policy for safety-sensitive transportation employees, such as pilots, school bus drivers and truck drivers. The compliance notice stated that a driver cannot be considered a qualified driver under the federal motor carrier regulations if the individual is taking medical marijuana. While the act prohibits an employer from terminating or disciplining an employee based solely on a positive drug test, it can be argued that the reason for disciplining, transfering, or terminating of a commercial drivers license driver with a positive drug test is because of the CDL rules and the effect that the positive drug test has on the CDL.
Addressing marijuana at the plant
There are numerous ways precasters have addressed the marijuana issue at the workplace in states where medical and recreational marijuana is legal. Hayward said that after Colorado Precast tackled the medical marijuana issue and placed its zero-tolerance stance in the employee handbook, the message did not change when marijuana became legal.
Hayward added that the company has released employees caught in random testing, but none have challenged the decision. A drug program is offered for those employees who want to take it and possibly be rehired. The employee must pay for his or her own testing and be drug free for a solid six months.
“Once hired back they understand that at any time during their employment, we can pull them even without doing a random test,” Hayward said.
However, according to Darrin Cary, chief of operations at Wilbert Precast Inc., when marijuana became legal in Spokane, Wash., it caught the whole staff off guard.
“You’re trying to maintain a safe workplace and now you’ve added something else in there that is legal,” he said. “Our conversations would always end with, ‘And oh yeah, it’s legal.’ So how can you tell people they can’t do something that’s legal?”
To make sure both staff and employees receive fair treatment, the company decided to amend its drug policy by taking out marijuana testing during pre-employment and random drug testing with the exception of its CDL drivers. Marijuana is tested after an accident or under reasonable suspicion and is treated the same as alcohol. The drug policy remains a living document and will be revised as more information becomes available, he said.
“What we are still struggling with is if an employee tests positive with a post-accident screen, we still can’t confirm he was high at the time,” he said. “For now, HR has instructed us to use our gut and other data to make a determination. The big issue is we’re still waiting for that magic range to see if an employee is under the influence.”
Nevada has not legalized medical marijuana, but Jensen Precast Inc. follows the same zero-tolerance policy as Colorado Precast, said Donald Graham, director of safety. Currently, in states where Jenson Precast has plants – Nevada, California, Arizona and Hawaiii – there are no state-mandated standards for the active ingredient in marijuana. The company has chosen to follow the DOT standard cutoff concentration that considers 15 milligrams of THCA (the active ingredient in marijuana) a positive test. Graham said employees who are caught are given the choice to attend the company’s substance abuse program. No employees are immediately terminated.
Every precaster should be fully aware of what is going on in their respective state and should know how they plan to address marijuana laws. On top of knowing the laws, industry professionals have suggested the following recommendations when tackling marijuana issues at the workplace:
• Revise employment policy manuals, specifically the drug testing policies. Make revisions consistent for potential use of medical marijuana, impairment at work from medical marijuana, prescription or synthetic drugs, and addressing safety-sensitive positions.
• Employers with drivers who have CDLs or who are subject to DOT or other federal drug statutes and regulations should review those policies to ensure they are consistent with the respective state laws.
• Employers should train supervisors to recognize signs of impairment or drug abuse and document and respond to employee impairment.
• Reasonable suspicion checklists are an effective tool to help supervisors document observations of impairment.
Whether you’re personally for it or against it, many states are moving forward with legalizing or decriminalizing marijuana in some way, shape or form. Precasters need to understand their respective laws and formulate a game plan for addressing marijuana usage at their plants. As Hayward said, “If it’s not in your employee handbook, that’s when you end up in trouble. You have to face it head on; spell it out in the very beginning.”
Evan Gurley is a technical services engineer with NPCA.
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