addressing drug use and changing legal and social

Addressing Drug Use and Changing Legal and Social

EnvironmentStrategic HR Management

04/11/2023HRinfo4u.com 2

Drug testing is not a new phenomenon. Drug Free Workplace Act of 1988 led to

increasingly frequent requirement for applicants to take a drug test.

Influences:◦ Social pressure◦ Regulatory mandates◦ Health insurance costs◦ Safety issues◦ Concerns over liability and litigation

Drug Testing


80% of employers require some sort of drug testing from their workforce.

Myriad of devices and techniques to prevent “masking” of controlled substances and to insure “control” of the sample.

Drug Testing


Ongoing changes in social, economic and regulatory pressures on drug use and testing.

Changes in the legal and regulatory framework of drug use.

New laws at the state level address critical issues like the medical and recreational use of marijuana.

Ever changing federal attitudes toward enforcement.

News Rules


Acceptance of marijuana use is growing among Americans.

Increasing awareness of prescription drug use and abuse and the impacts on the workplace.

Two intertwined issues:◦ Strong rates of recreational use◦ Concerning trend of employee reporting to work

under the influence of powerful prescription medications

New Rules


A blanket drug free workplace policy may no longer be appropriate, particularly in light of prescription drug use and abuse.

How do these changes impact our approach to drug use and workers who come to work under the influence?

New Rules


Marijuana use and medical applications go back thousands of years.

Medical applications as a salve, anti-nausea, diuretic and laxative.

In the 19th century, cannabis was a popular pain reliever.

in the 20th century, social attitudes to drugs like marijuana and morphine shifted, leading to stricter regulation.

Marijuana


Increased regulation led to criminalization in 1970, with the Controlled Substances Act.

A wide range of drugs identifies for their potential for abuse, appropriateness for medical use and general safety.

Marijuana and LSD are Schedule 1 drugs, illegal under federal law and identified as having no legitimate medical purpose.

Marijuana


A small but growing opposition argued that medical marijuana use in treating the symptoms and side effects of various cancers, HIV/AIDS, epilepsy, multiple sclerosis and glaucoma.

Marijuana


Proposition 215 in California was the first attempt to protect patients, caregivers and physicians from state level prosecution for the possession, use, cultivation or recommended use of medical marijuana.

DOJ initiated criminal prosecution of physicians under federal law.

Class action lawsuit, Conant v. Walters, permanent injunction by a federal court, allowing medical marijuana.

Medical Marijuana


As of today, 23 states and DC permit medical use of marijuana and 13 states are considering it.

Most of the laws decriminalize the therapeutic use of marijuana by individuals with serious health conditions.

Broad diversity in the language of the various laws, though.

Medical Marijuana


Little commonality on:◦ How much cannabis may be legally possessed

(ranges from 1oz to 1.5 lbs.)◦ How a patient acquires the marijuana. (some

allow home grown, other dispense it through a state system)

◦ The specific medications allowed under the law.◦ The registration process the patient has to

undergo.◦ How a patient proves a medical marijuana

exemption to law enforcement.

Medical Marijuana


The lack of consistency makes it challenging to make broad statements about medical marijuana use.

Since it is a Schedule 1 drug, physicians may not prescribe it, only recommend it to their patients as part of their therapeutic or palliative care.

There is also no uniform guidance for which medical use is appropriate.

State vs. Federal Law


Marijuana clearly remains illegal under federal law, regardless of state laws.

Clinton administration sued states that passed these laws.

Bush administration raided facilities dispensing marijuana.

Obama administration pursues individuals who cultivate, sell or distribute medical marijuana.



Awareness of Marinol (dronabinol). Synthetic cannabis that is legal under

federal law (schedule 3 drug) It provides many of the same benefits as

cannabis and can be prescribed. With natural cannabis, there is no standard

dosage so physicians struggle with usage.



Marinol is a pill to be swallowed and is slower acting so does not provide the immediate relief of cannabis.

It cannot be used to combat nausea and vomiting associated with some medical issues.



Growing acceptance of non-medical use of marijuana.

Most of the anti-marijuana stance and criminalization is the result of its recreational use.

Recent polls indicate that a small majority of Americans favor outright legalization of marijuana. (65% of millennials)

Recreational Marijuana


2 states, Colorado and Washington, have decriminalized non-medical possession and use of marijuana.

As long as marijuana is a Schedule 1 drug, outright legalization is a difficult legal issue.

This tension creates problems for employers.



Issues:◦ Oversee sales and distribution◦ Gather taxes◦ Regulate the marijuana industry◦ Safety concerns

Impaired drivers No easy, effective way to determine if a driver is

under the influence of marijuana



The fundamental question, in light of the evolving situation, is: do we need to accommodate our employees’ ability under state law to consume or possess marijuana for medical or recreational purposes?

Luckily, the guidance, with a few exceptions, has been relatively clear and consistent-as long as cannabis is illegal under federal law, we can take action against an employee who tests positive for it.

Employee Protections


The vast majority of states that have medical marijuana laws do not address an employee’s right to consume cannabis.

While there is a grey area given the lack of direct references, litigation from those who consume medical marijuana and are disciplined or terminated by the employers has been fairly consistent.



Decisions by courts in California, Washington, Oregon. Colorado and the US District Courts have supported the rights of an employer to take adverse action against a candidate or employee based on the presence of marijuana in a drug test, even if that person is permitted to use marijuana for medical reasons.



These decisions have been based on 2 primary points:◦ Marijuana is still classified as a Schedule 1 drug

by the federal government◦ Marijuana use by employees could present safety

concerns for an organization and organizations can take reasonable steps to protect themselves from these risks.



Five states have some employee protection under the law, but they vary from state to state.

Connecticut states that employers can prohibit the use of marijuana during work hours and discipline employees impaired during work hours.

Employers subject to DOT regulations have greater freedom to take action against an employee.



Recreational marijuana laws do not prohibit employers from taking adverse action against an applicant or employee for cannabis use.

Unlike medical marijuana cases, these individuals cannot claim disability discrimination or violations of public policy to defend themselves.



Another issues is pre-employment drug testing.

A difficult question is, do we need to shift from testing solely for the presence of marijuana to a test that checks for impairment? (if there was one?)



Employers also seek to address safety concerns when their workers use drugs properly but are unable to work while under their influence.

More than 20% of Americans over the age of 12 state that they have uses prescription drugs in a non-medical manner.

Prescription drugs, after marijuana and alcohol, are the most commonly abuse drugs.

Prescription Drugs


The CDC & P classified this as an epidemic and the fastest growing drug problem in the US, with 1 death every 19 minutes.

Like illegal drugs, prescription drug use can have an impact on accidents, job performance and other incidents, like theft.

Prescription Drugs


Prescription medications present other challenges:◦ Their mere presence does not constitute an

offense◦ Many of these employees are protected under the

ADA◦ Workers can claim privacy of their health

information and not share details of their drug use with employers.

Prescription Drugs


Employers have some latitude to inquire into, or even test for, prescription drugs used by the employee.Employees in safety sensitive position or in a post accident situation could be subject to question about prescribed medications.

Prescription Drugs


Step one, fundamentals:◦ Establish if your policy is adequate based on your

particular issues◦ Create a list of the positions to determine safety

risks◦ Clarify if your organization falls under federal

regulations◦ Construct a list of the states your organization

operates in

Time for a Review


Step two, layer in complexity◦ Engage your counsel◦ Work with a medical review officer to understand

the drug testing process◦ Know best practices

Clear Concise Consistent Broadly communicated

◦ Establish a methodology for reviewing and updating the policy

Time for a Review


Step three, address specific issues◦ Determine if your organization is comfortable with

exceptions to the policy◦ Ensure the test panel comprises the right drugs◦ Establish how you will determine “proof”◦ Include specific language as to use, possession or

influence in the workplace

Time for a Review


Questions/Comments?

addressing drug use and changing legal and social

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