Page 42 - Occupational Health & Safety, March 2019

DRUG TESTING
of marijuana, the FDA approved two drugs that contain THC, the impairing compound in marijuana. Marinol® and Syndros® are used to treat patients with cancer, glaucoma, AIDS, and HIV. These approved medications have little THC but still may be prohibited in certain positions/industries (e.g., safety-sensitive).
Marijuana Use Compared with Alcohol Use
Recreational marijuana is often compared to alcohol, but for em- ployers, there is a key difference. At this point in time it is nearly impossible to assess a marijuana user’s level of impairment. A sim- ple and noninvasive breath or saliva test can tell an employer on the spot how impaired an employee is due to alcohol use and can allow a timely decision to take an employee out of a dangerous position.
Assessing marijuana impairment is much more complicated. Oral fluid testing is currently the best practice, as it can detect re- cent marijuana use, exclude long-past use, and do so with a non- invasive test. Urine testing is unable to discern recent use from weeks earlier and often cannot capture use that happened within the last few hours. This being so, there is no test currently on the market that can assess the level of marijuana impairment. While science can tell us that a blood alcohol concentration of .08 percent has specific effects on a person’s functioning, science cannot tell us what effect a certain concentration of THC (nanograms per mil- liliter) will have on an individual.
Additionally, the level of THC in marijuana still varies wide- ly, while the amount of alcohol in a drink is highly standardized. Marijuana users, whether medical or recreational, rarely know how much THC they are consuming. This arguably makes marijuana testing all the more important, as users may not themselves real- ize how impaired they are and/or how long their “high” will last. Conversely, most adults have a good sense of how many alcoholic drinks will have an impairing effect on them. Until marijuana pro- duction, manufacturing, labeling, and distribution become stan- dardized, use, safety, and wellness will continue to be a foggy area.
How State Laws Treat Marijuana Testing in the Workplace
States that legalize marijuana have a variety of ways they treat marijuana in the workplace. Some protect an employer’s right to maintain a marijuana-free workplace; others make it difficult for employers to regulate marijuana use by employees. This is also complicated by state court rulings, which sometimes add ad- ditional protections for marijuana-using employees. Workplace protections are, for the most part, limited to medical marijuana, with almost no protections for employees who use marijuana rec- reationally. However, in the 10 states and Washington, D.C., where marijuana is recreationally legal, the law is still not cut and dry.
States That Permit Discipline for a Positive Test
Most state marijuana laws either specifically permit employers to restrict marijuana use by employees or do not mention employers or the workplace at all. When a state marijuana law does not men- tion employers at all, the status quo remains in place, which is that employers may test for and discipline for marijuana use in the same manner as other illegal drugs (subject to the requirements of state drug testing laws).
An example is Colorado’s medical marijuana law. The medical marijuana law provides, “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” While this may be interpreted as limiting an employ- er’s reach only to the workplace, the Colorado Supreme Court also issued a ruling on the issue expanding it. The court ruled that an employee may be terminated from employment for testing positive for marijuana, even if the employee was using in compliance with Colorado’s medical marijuana law.
States That Protect an Employee’s
Medical Marijuana Use
On the other hand, some states affirmatively protect an employee’s right to use medical marijuana. Some state laws prohibit employers from disciplining an employee for a positive marijuana test alone if the employee is a certified medical marijuana patient. In these states, employees may be disciplined for a positive marijuana test in conjunction with other factors, but a positive test cannot be the sole reason for workplace discipline. This protection does not extend to recreational marijuana use in any state except Maine.
An example of this medical marijuana protection is the state of Arizona. Arizona’s medical marijuana statute reads:
“Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regula- tions, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:
1. The person’s status as a cardholder.
2. A registered qualifying patient’s positive drug test for mari- juana components or metabolites, unless the patient used, pos- sessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”
Thus, in Arizona, a medical marijuana patient cannot receive workplace discipline for a positive drug test unless he or she was impaired by marijuana during work hours or brought or used mar- ijuana in the workplace. Remember, as discussed earlier, proving impairment remains an issue and oral fluid drug testing remains
36 Occupational Health & Safety | MARCH 2019
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