As the legalization of cannabis has progressed, we have seen a movement to protect cannabis users from discrimination in the workplace growing right alongside it.
With alcohol, testing for impairment is quite straightforward. Simply administer a test and if the result is positive, the worker is too intoxicated to work. Cannabis doesn't work the same way, however, and the presence of THC in the body is not necessarily correlated with impairment.
Testing for the presence of THC through saliva, blood, urine, breath, or hair is only able to show prior use of the substance, not current intoxication. In states where cannabis is legal for adult use, it follows that penalizing employees for testing positive for THC means penalizing them for using a legal substance in their free time.
Lawmakers in many states are tackling this issue, and a new era of legal protection for cannabis users is being created – one that has significant implications for workplace drug and impairment policies.
Why Testing for THC Is Inadequate
Like it or not, most states in the US are moving toward legalizing cannabis use for adults. As such, it's the job of safety professionals to respond to this shift in a way that keeps their workplaces safe while also respecting the legal rights of their employees.
Since THC from cannabis use lingers in the body long after the impairment has ended, basing a drug testing policy entirely on THC tests is like telling your employees that they can’t have a beer after work. Further, there is no evidence that off-duty cannabis use has a negative impact on job performance or safety. In fact, a number of studies have shown that cannabis users are just as productive and safe as non-users.
To illustrate the point, here are the most commonly used cannabis tests and the length of time a positive test is usually found:
- Urinalysis Test: Tests for THC metabolites, positive for 4-6 weeks
- Blood Test: Tests for THC and/or THC metabolites, usually positive for up to 7 days (though occasionally up to 4 weeks)
- Saliva / Oral Fluid Test: Tests for THC, usually positive for 24-48 hours (though occasionally up to 8 days)
- Breath Test: Tests for THC, usually positive for 3-4 hours but can be positive for several days (ineffective for edible cannabis)
- Hair Follicle Test: Tests for THC metabolites, positive for 3-4 months
- Impairment Test: Tests the body and/or brain’s response to cannabis, positive during the experienced impairment only
Since employees can test positive for THC days, weeks, or months after last using cannabis, it’s easy to see why blanket zero tolerance policies based on THC tests are now considered discriminatory against legal cannabis users.
It is incumbent upon safety professionals to understand this and adjust their policies to accommodate legal, off-duty cannabis use.
(Learn about Gas Hazards in Commercial Cannabis Operations)
New Legal Protections for Cannabis Users
In response to these testing limitations, a number of states have passed new laws to protect cannabis users from workplace discrimination. These laws vary considerably from state to state, but they typically prohibit employers from reprimanding, penalizing, or firing employees based on their off-duty use of cannabis.
The law that many states and employers are looking at most is California's Assembly Bill (AB) 2188, which goes into effect on January 1, 2024. This law will prohibit employers from discriminating against employees based on their use of cannabis, as long as they are not impaired at work. It specifically precludes employers from using legacy metabolite-based chemical drug tests to take adverse employment action against their employees.
AB2188 is just one example. Other states with similar laws include Minnesota, Washington, New Jersey, New York, and Oregon. It’s extremely likely that many other states will follow suit in their upcoming legislative sessions. So, it makes sense for employers to get ahead of the curve by implementing fair and logical workplace policies.
This complex issue can be easily tackled by reviewing current policies and adopting a modern workplace drug and impairment policy that specifically speaks to cannabis legalization.
Creating a Comprehensive and Legally Compliant Workplace Impairment Program
Employers should always work with legal counsel to craft workplace drug and impairment policies. Since rules and regulations vary considerably between states, an attorney will be best equipped to advise in this area.
At minimum, a comprehensive workplace impairment program should include the following components:
- A clear and concise policy on drugs and impairment. This policy should define what constitutes impairment, specify which drugs will be tested for, how employees will be tested, and outline the consequences for employees who are found to be impaired at work.
- Regular training for employees and supervisors on impairment. Called “reasonable suspicion,” this training can help employees and supervisors to understand what impairment is and how to identify it.
- A fair and consistent process for testing and disciplining employees who are suspected of being impaired. This process should be based on objective evidence and should not discriminate against employees of any type, including those who use cannabis in their free time.
- Some leading companies are also offering programs to support employees who are struggling with addiction. This could provide them with access to counseling, treatment, and other resources.
(Learn more in 5 Benefits of an Employee Assistance Program)
The Rise of Impairment Detection Technology
Just as laws have changed in response to cannabis legalization, so has technology. Since simply measuring THC in the body is insufficient to determine cannabis impairment, companies have responded by creating a new class of products designed to provide useful, accurate, and actionable results. Rather than simply identifying the chemical biomarkers of cannabis, Impairment Detection Technology (IDT) measures how the body is responding to drug use.
Examples of products in this growing space are apps that measure reaction time, tools that analyze voice patterns, cognitive performance tests, and tests that measure eye response in much the same way that law enforcement officers do when assessing a suspected impaired driver.
Leading employers are already using these tools to augment their workplace drug and impairment policies. By detecting impairment as it’s being experienced, employers can take more appropriate steps to combat workplace drug use in a way that is objective and fair for the employee.
Get Ahead of the Curve
Cannabis use is becoming increasingly common and employers need to be prepared to address this issue in the workplace. By passing AB2188, California is setting an example for marijuana policy that will doubtless be emulated by other states.
Employers can get ahead of the curve by responding to this trend proactively by implementing a comprehensive workplace impairment program that includes Impairment Detection Technology. Those who do will be able to maintain a safe and productive workplace without infringing on their employees' legal rights.