The Centers for Disease Control and Prevention hosted a virtual discussion on September 16 for workplaces facing “increasing questions” about cannabis as a result of changing state laws.
The National Institute for Occupational Safety and Health (NIOSH) Center for Motor Vehicle Safety, within the CDC, encouraged those in the health and safety industries to tune in to learn about the knowns and unknowns about cannabis-impaired driving, the legal and testing considerations for employers of safety-sensitive employees who must drive as part of their job, and to give suggestions for how employers “can manage workplace driving risks associated with marijuana use.”
Speakers included John Howard, the director of the National Institute for Occupational Safety and Health, and Natalie Hartenbaum, president and chief medical officer of OccuMedix, an occupational medicine consulting firm.
“It is a difficult period of time for employers to be looking at this issue,” Howard said, highlighting that Americans live in a “dual sovereignty republic.” With regulations coming from both the federal government, which has maintained cannabis prohibition, and state governments, more than half of which have legalized cannabis for medical and/or adult use, he continued, “employers often can run into or run afoul of legal issues.”
Howard posed the question: do employers have a duty to accommodate an employee’s use of cannabis?
“No state requires an employer to accommodate cannabis consumption in the workplace,” Howard said, adding that 12 states and Washington, D.C. have adopted specific provisions that block an employer from “taking action against an employee in hiring and termination,” as well as other provisions that protect medical cannabis patients. Nevada became the first state to prohibit, with some exceptions, an employer from refusing to hire a potential employee specifically because of a THC positive drug test. New York City also has a similar law.
“Given that a number of states are writing these employer protections into their cannabis access laws, I think it’s important for you to rethink [workplace policies]. And I think employers in those kinds of states need to confirm whether a positive drug test is connected to state certified medical use before they jump to an employment decision to terminate,” he said. One of the arguments put forth by employers seeking to terminate an employee—or to reject an applicant— who has tested positive for THC is that cannabis is federally illegal. Howard said that while that defense works for federal contractors, and while many courts have agreed with this argument, that’s not the case across the board. Howard pointed out two cases—one in Connecticut and one in New Jersey—that ruled against the employer, which could happen more in the future, he said.
“I think the lesson that we can learn is that zero tolerance drug policies could actually increase an employer’s liability. And that drug testing policies that an employer may have should account for the state and discrimination, because an employee may sue under state law saying ‘you discriminate me against me,’” Howard said.
Howard also brought up questions on the topic of workers’ compensation issues. Can a workers’ compensation claim be denied if an employee tests positive for using state-legal cannabis? Or, could an injured employee seek reimbursement for medical cannabis to treat a workplace injury?
“The courts are kind of a little separated here,” Howard said, adding that while Florida and North Dakota have expressly prohibited reimbursement, New Mexico established a maximum reimbursement amount in its worker compensation fee schedule. Howard suggested that people check their individual states for their workers compensation policies.
“So it’s a little workers’ comp law in progress,” he said.
Hartenbaum brought up the “very complicated issues with CBD,” and the gray areas around it, depending on whether it was derived from what we know as hemp, which is cannabis with .3% THC or less, and is federally legal, or what we know as marijuana, which is cannabis with more than .3% THC.
“Yes, CBD [products] can potentially cause a positive federal drug test for THC,” Hartenbaum said, referencing a recent Department of Transportation reminder about drug tests. “CBD is not a legitimate medical explanation for a laboratory confirmed THC part of the test.”
While CBD products are on shelves across the country, the FDA has yet to unveil regulations for such products. Therefore, CBD products that have labels indicating that they do not contain THC might not be accurate, and for federal employees, this is where they could encounter trouble. (Catch up on Cannabis Wire’s coverage of the long-awaited FDA regulations for CBD products.)
“It is essentially a ‘use-at-your-own-risk, buyers beware’ situation for CBD” when it comes to federal employees, she said.
Hartenbaum brought up the “general duty clause,” which requires employers to protect their employers from workplace hazards.
“One of the biggest concerns about the use of cannabis in the workplaces is: Is the individual going to be impaired, and is the individual going to injure themselves, or are they going to injure their coworkers?” she asked. For example, while post-accident drug testing can be done under certain circumstances, perhaps to evaluate the cause of a workplace incident that harmed, or could harm employees, Hartenbaum stressed that “when you get information, you have to know what you’re going to do with it.” Under OSHA, an employer may or may not be able to actually conduct that post-accident testing, perhaps based on the type of job, or by the hazard.
“The challenge really,” Hartenbaum said, comes down to impaired driving, including detecting impairment, and whether cannabis use is directly linked to increased risks.
“And the bottom line is, we don’t know,” she said. “We do know there’s driving impairment. But is there an increased risk crash?” Hartenbaum said that older studies on the topic tended to show an increased risk, but more recent studies are more inconclusive. Though, alcohol and cannabis co-use consistently shows increased risk, she said.
Looking at May data from the Federal Motor Carrier Safety Administration, cannabis was by far the most consumed substance, and accounted for more than 10,000 positive drug tests, or about half. Quest Diagnostics data also show an increase in cannabis consumption.
“Marijuana continues to be an enduring presence in the U.S. workforce. Changing attitudes toward its use could pose heightened risks especially in safety-sensitive positions and those states exploring legalization,” Barry Sample, senior director of science and technology at Quest Diagnostics, said in a statement.
Specifically, the Quest data show a rise in cannabis positivity tests across all industries, and greater increases in transportation and warehousing industries.
“We do know that our individuals that are working in the transportation industry and who work in the warehousing industry are using cannabis at a significantly higher number than they had back even a couple of years ago,” Hartenbaum said.
Hartenbaum echoed Howard when it came to the state-by-state patchwork of employee laws and how they approach cannabis, with the strictest approaches typically still aimed at safety-sensitive employees.
“You need to remember that one policy does not fit all companies. One policy does not fit all states. If you have a multi-state company, you need to be aware of what the requirements are, what is permitted in each of those states,” she said.
This discussion was hosted as the National Safety Council, the American College of Occupational and Environmental Medicine, and 20 other organizations, sent a letter last week to Rep. Jerry Nadler and other House members, urging them to hold hearings on how the MORE Act could impact workplace safety.
“There are many occupations and work tasks where marijuana impairment poses significant risks to workers, their co-workers, customers, and the public,” they wrote, referencing concerns over safety-sensitive employees like truck and bus drivers, and forklift and crane operators.
“We urge that any steps toward legalization include a consideration of the impact on transportation and workplace safety and to ensure that there is an evidence-based standard for detecting marijuana-impairment in driving and other safety sensitive operations,” they wrote.