Currently, marijuana is legal for medicinal purposes in 28 states, and legalized for recreational usage in two. Add to that a nationwide increase in the abuse of prescription painkillers, and employers are faced with unique practical and ethical challenges. Making things even more complicated are changing regulations regarding workplace safety and drug testing policies.
Here are some tips for navigating the here and now, and preparing for the future.
Changes in Federal Post-Accident Testing Policy
Until recently, many employers drug tested every employee injured in a workplace accident. That changed in 2016, when issued a rule advising that employers should only conduct post-accident drug screening in situations where there is a “reasonable possibility” that drug use was a “contributing factor to the incident.”
Now that employers can’t test everyone post-injury, it’s a good idea to consider shifting from an
investigation-based drug abuse policy to a more preventive and assertive policy. Pre-employment screenings and random drug tests can help you get ahead of the curve before an accident happens.
To lawfully implement this, employers must provide a clearly written manual regarding their drug policies. The policy must explicitly designate the workplace as a “drug-free environment” and specifically state that this may include legally prescribed medications. The manual should clearly identify that random drug screenings will take place and explain how employees will be selected. The policy should also denote how the results will be used, and the procedures or decision-making if an employee “pops” positive.
Employees should be required to sign this drug policy. There are several ethical and privacy considerations that should be taken into account and, if possible, the drug testing results should be private.
Additionally, with a blanket policy, it’s a good idea to switch to a more expansive drug screening test. Most employers currently utilize a five-panel drug screen, testing for THC, opiates, PCP, cocaine and amphetamines. The five-panel test misses more commonly prescribed drugs such as muscle relaxants, gabapentin, and/or benzodiazprines, all of which can also compromise safety in the workplace.
What If the Test Is Positive?
If test results come back positive, employers must consider that a person may be taking prescribed drugs--including marijuana—for an illness or injury. Must an employer continue to allow a person on legally prescribed medication to continue to work? Unfortunately, there is no straightforward answer, as the law in this area is rapidly evolving. For now, employers should recognize that their decision to terminate may be challenged and prepare to act accordingly.
Upon learning of an employee’s marijuana or prescription painkiller use—through employee disclosure, test results, or other means—do not respond too hastily or move to terminate an employee immediately. Conduct an investigation into whether the employee is taking the drugs legally or illegally. Does the employee have a legal prescription? If so, the Courts seem to suggest that employers should take an additional step to evaluate the individual employee’s specific situation, similar to an analysis under the American with Disabilities Act (ADA).
The employer should consider the employee’s specific job duties, the effect of the medication, when the medication is being taken, whether the employee’s job can be conducted safely while under the medication’s influence, and safety concerns of employees in the workforce in general.
Debra Doby is an associate with Goldberg Segalla in White Plains, New York, who concentrates her practice on Longshore, Jones act and workers’ compensation litigation.
Todd M. Jones is a partner with Goldberg Segalla in the firm’s Garden City, New York, office whose practice focuses on workers’ compensation.