MARIJUANA AND THE WORKPLACE
By MARA KNAUB SUN STAFF WRITER
WITH THE LEGALIZATION of recreational marijuana, employers are facing new challenges. With a confusing lack of standards regarding how employers should manage private use of marijuana by employees, they wonder how they should handle the new development and how it might impact their policies and practices. Can employers still prohibit marijuana use in the workplace? Should they remove tetrahydrocannabinol, or THC, the main active ingredient of cannabis from the drug screen? Should they increase the THC limit? Some workplace policies might clearly state “no smoking marijuana in the workplace,” but marijuana comes in so many forms, including edible products, such as marijuana-infused energy drink products, baked goods and candies. Other issues complicate the dilemma for employers. For example, marijuana remains illegal under federal law, and some types of businesses and organizations either rely on federal funding and/or must follow federal regulations due to the nature of the work. It’s a touchy subject. The Yuma Sun reached out to numerous businesses and organizations to find if they’ve been impacted and how they’re dealing with it, but the great majority declined to comment. One business owner explained it this way: “I am not comfortable discussing this issue in a public forum … This involves a private family owned business, and I am simply not comfortable in commenting on the questions posed.” Some employers pointed out that they’re still working on updating their policies. “With this law being new, we are having to update some policies and they are not finalized or approved yet,” the Yuma Police Department said. Some organizations noted that the legalization of recreational marijuana does not change anything and they will remain a drug-free workplace. Arizona Western College, for example, noted that due to its heavy reliance on federal grants for students who qualify for financial aid, which is about 66%, the college cannot permit marijuana on campus. As marijuana remains illegal under the federal law, “we must maintain a drug-free campus, inclusive of marijuana, per the regulations of the U.S. Department of Education,” according to a statement issued by AWC. Jonathan Lines, owner of Lines & Lundgreen Roofing and Insulation Inc., has a strict no drug-use policy. The business has 49 employees who install roofing, insulation and acoustical ceilings. Lines noted that workers must adhere to the federal Occupational Safety and Health Administration. “Operating heavy equipment or being 6 feet off the ground requires my guys to not be impaired,” he said. “And so we will continue to monitor and test for drugs, and if somebody is found to be impaired, they can take it up with fed OSHA, but I still have to follow those guidelines.” One of those guidelines requires “no impairment at all,” Lines explained. “The feds don’t make a distinction, and that’s the problem between federal and the state.” But the business owner, who is also a Yuma County supervisor, pointed out that it’s about more than following the law. It’s about safety. “You don’t want my guys driving a truck down the road or a forklift down the road or in a subdivision being impaired. So we will continue to test and we will not allow anybody to work for us under the influence especially when they’re working off the ground on a roof or on a scaffold.” If a worker is suspected of being impaired, they are sent home. “If someone came in with a particular odor or acting impaired, then everyone around them kind of raises that flag and says, ‘Hey, we have a concern. We don’t know if this person should be working today,’” Lines said. “It’s critical to maintain safety no matter what types of drugs they say are legal. We still have to follow fed OSHA and we still have a responsibility to keep the community safe, which we are always going to do. And I want my guys to be safe too. I want them to be able to go home at the end of the day and see their families,” he added. For some organizations, especially government entities, the legalization of marijuana might impact their ability to hire employees. For the Yuma County Sheriff’s Office, for example, it might become a little more difficult to hire employees because the agency holds a minimum standard for applicants’ marijuana usage, which is that candidates for a detention officer and civilian staff positions cannot have smoked marijuana within the last six months. The Arizona Peace Officer Standards and Training Board, which certifies peace officers, goes even further. Peace officers cannot have smoked marijuana within the last two years. “Now that marijuana is legal, some might believe that these standards would have changed, but they have not,” noted Tania Pavlak, YCSO public information specialist. This is, and has been, and will continue to be the policy. “In regards to our current employees, and the minimum standards of appointment for any prospective employee, we are not planning on changing our policies,” Pavlak said. The Sheriff’s Office performs urine drug testing every month, and it has no plans to remove marijuana from the panel test at this time. Arizona Public Service, an electric utility, serves about 1.3 million homes and businesses in 11 of Arizona’s 15 counties, including Yuma County. To ensure that APS delivers safe and reliable energy to its customers, APS remains a drug- and alcohol-free workplace. “APS will continue to prohibit employees from using or reporting for work under the influence of an illegal drug, including marijuana, medical or otherwise,” explained spokesperson Lily Quezada. APS conducts routine drug testing for prospective employees as well as random drug testing for current employees. “APS maintains and will continue to enforce our drug testing and drug-free workplace policies, procedures and processes despite the passage of Proposition 207 in Arizona. Marijuana remains unlawful under federal law and APS prohibits employees from reporting to work under the influence of an illegal drug, including marijuana,” Quezada added. Employer rights and responsibilities According to the National Drug and Alcohol Screening Association, 84% of the 123 million full-time U.S. employees live in a state where marijuana is legal in some form, with 56% living in states where medical marijuana is legal and 28% living in states where recreational marijuana is legal. Marijuana is the most commonly detected drug, with increases in almost half of industry sectors, according to a Quest Diagnostics multi-year analysis of workplace drug use. An analysis of worker drug use and workplace policies and programs by the Substance Abuse and Mental Health Services Administration shows that employee drug use costs U.S. businesses more than $246 billion per year in lost revenue and small businesses can lose about $7,000 a month in lost productivity, employee turnover, absenteeism and tardiness due to drug use. In 2010, Arizona voters made medical marijuana legal. On Nov. 3, Arizona voters approved the Smart and Safe Arizona Act Arizona Medical Marijuana Act, which legalizes the use of marijuana by adults 21 years of age and older. However, it does not allow driving, flying or boating while impaired. The new law does not restrict the rights of employers to maintain a drug-free workplace. Employers can still have workplace policies restricting the use of marijuana by employees or applicants. It also does not restrict the rights of employers, schools, daycare centers, adult daycare, healthcare facilities or correctional facilities from prohibiting or regulating employee conduct. Under state law, employers may not rescind a job offer from a medical marijuana registered cardholder applicant or discipline/terminate a registered cardholder employee based on a marijuana positive test unless it causes the employer to lose a monetary- or licensing-related benefit under federal law or regulation; the employee uses medical marijuana on the employer’s premises or on duty; the employee possesses marijuana on the employer’s premises or while on duty; or the employee is impaired by marijuana on the employer premises during hours of employment. Gina Kesler, president and CEO of Impact Employee Solutions, in a recent presentation called “Arizona Marijuana: Workplace Challenges in a Drug Friendly Culture,” recommended that employers have a sound drug/alcohol policy. Zero tolerance is absolutely allowable and enforceable, she noted. Kesler explained that an employer’s responsibilities include setting safety and substance abuse policies to protect employees, customers, work environment and the public. Employers should communicate the policies and expectations with all staff and consistently enforce policies. Policies should cover employer’s rights to test for drugs pre-employment, randomly, post-accident and due to reasonable-cause signs and symptoms. According to the Arizona Drug Testing of Employees Act (DTEA), employers who ask an employee to submit to a drug test are protected from litigation if most of the following are present: • Good faith belief of impairment based on any of the following: Observed conduct, behavior or appearance; reliable source reported or witness; written, electronic or verbal statements; lawful video surveillance; and/or positive drug or alcohol test result. • Employee’s position falls within the safety-sensitive definition: operating motor vehicle, machinery, equipment or power tools; repairing, maintaining or monitoring any of the above; performing duties on premises of a customer, vendor or supplier; preparing or handling food and medicine. • Any regulated occupation pursuant to Title 32 What if an employee tests positive? An employer can handle this in various ways, and there are even solutions to keep people working. Kesler notes that an employer could have zero tolerance for drug use and immediately terminate the employee. The employer can have the employee reapply, perhaps in 30 days or one year. The employee could be suspended, sign a second chance agreement and follow up with testing programs, substance abuse counseling and random recovery testing.