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Editor’s note: The information in this article does not constitute legal advice. It should not be used as a substitute for obtaining legal advice and consultation prior to making decisions regarding individual circumstances. Over the past ten years, fourteen additional states have legalized medical marijuana, bringing the national total to twenty-three states and the District of Columbia, according to the website ProCon.org. In addition, two states, Colorado and Washington, have legalized recreational use of marijuana. These considerable changes in regulatory compliance present new challenges for employers that operate alcohol and drug prevention (ADP) programs. Beyond marijuana, abuse of illegal street drugs and legal prescriptions is also high, translating to increased risk in the workplace. How should employers respond? Unfortunately, many employers assume that no problem exists because they already have an ADP program. As part of a research project conducted by the Department of Safety Sciences at Indiana University of Pennsylvania, we investigated changes in the U.S. drug industry over the last ten years to determine whether workplace ADP programs are keeping pace with pro-drug innovations. Medical marijuana, cannabidiol, legal prescriptions, synthetic drugs, and advancements in adulteration have created new challenges employers should address in their ADP programs. An examination of academic studies, government publications, legal decisions, and media articles related to innovations by the pro-drug industry and employers’ control efforts—as well as practical experience consulting with employers on safety matters—identified five actions employers can take to help their ADP program succeed:
  1. Revise position evaluations to include the terms safety sensitive and direct threat.
  2. Document training requiring employees to self-report any medication that could cause impairment.
  3. Inform medical research officers (MROs) which employees perform safety-sensitive tasks.
  4. Ensure healthcare facilities and laboratories are conducting quantitative drug tests and not simply qualitative.
  5. Include point-of-collection examination in alcohol and drug screening.
EMPLOYER ADP PROGRAMS Industrial hygienists make exposure assessments that assume a toxin-free baseline physiology. The issue of impaired employees creates multiple chemical toxicity concerns. Research can’t address all possible toxic interactions between workplace chemicals, pharmaceuticals, and recreational drugs on employee physiology and cognition. Effective ADP programs are essential to support exposure assessments and maintain safe and healthy work environments. Most employer ADP programs maintain a list of safety-sensitive positions, require employees to present new prescriptions for consideration of possible impact to job duties, and include initial, random, and post-incident drug screening. These programs are based on several assumptions. For instance, employers assume that their safety-sensitive positions will not undergo significant scrutiny from outside the organization, such as in court. Also, many organizations assume employees will present their prescription medications for consideration before continuing work. Finally, employers often assume traditional drug screening will catch offenders and serve as a basis for disciplinary actions. These assumptions may be faulty; consider, for example, the implications of the Americans with Disabilities Act (ADA) on the safety-sensitive position list. The ADA protects recovering and recovered alcoholics or drug addicts from discrimination. However, as explained in a 2012 article published in Lexology, the ADA also gives employers significant rights to ensure an alcohol- and drug-free workplace by testing employees for illegal drug and alcohol use under certain conditions. Federal employers have been mandated to follow drug-free workplace requirements since 1986 when President Reagan issued an executive order authorizing the Department of Health and Human Services (HHS) to develop testing guidelines. The terms safety sensitive and direct threat should be included in employer ADP programs for performing individualized assessments. These terms have regained importance as employers are determining their right to decline employment for individuals claiming to be protected by the ADA and applying for certain positions. A 2010 article in the British Columbia Medical Journal defined a safety-sensitive position as one where impaired performance, for whatever reason, could result in a significant incident affecting the health or safety of employees, customers, customers’ employees, the public, property, or the environment. Direct threat is an employer defense under the ADA when dealing with issues of substance abuse; it is defined in the Act as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA permits employer work rules requiring an individual not pose a direct threat to the health or safety of other individuals in the workplace. Documented employee training should include the requirement to notify Human Resources if an employee performing safety sensitive tasks has been issued a valid prescription that could cause drowsiness or impairment while at work. Such impairment could be exacerbated by other workplace exposures, which would invalidate previous assessments.
Some laboratories have switched analysis from quantitative to the less expensive qualitative screening without informing their employer clients. The qualitative tests cannot be used to demonstrate that impairment contributed to an incident.
Medical Marijuana, Legal Positives, and Other Challenges for Drug-free Workplace Programs
BY ERIC NELSON AND JEREMY SLAGLEY
KEEPING PACE WITH
Drug-use Trends
thesynergist | TOC | NEWSWATCH | DEPARTMENTS | COMMUNITY
Public support for legalizing marijuana has reached an all-time high in Gallup Polling with 58 percent of Americans supporting the movement. Last January, Fox News reported the stock price for a medical marijuana machine company increased 57 percent after Colorado legalized recreational use. The state reported over $5 million in taxed and regulated sales of marijuana during the first week of legalization and more than $200 million during the first four months. - Eric Nelson and Jeremy Slagley