What employers need to know about opioid and marijuana testing

by Courtney Llewellyn

As time continues its relentless march forward, so do the problems affecting human beings. Today, there are new issues both workers and employers have to deal with that had never been of concern in the past. Two exist in a gray area — not illegal but definitely impactful on job performance; one is addiction to opioids, the other is the legalization (in various forms) of marijuana.

Safety on a jobsite is paramount, and having sober, clear-minded workers is a large piece of the safety puzzle. Many companies still require drug testing, both at time of hire and during a person’s course of employment. How should employers deal with results that show marijuana or opioid use then?

Travis Vance, a partner with Fisher Phillips, recently spoke on this issue. He started by talking about the opioid crisis, noting he had personal connections with people dealing with opioid issues — both family members and clients. “Growing up in Appalachia, I was exposed to these drugs before it became a national crisis. They’ve been around my entire life,” he said. Vance stated the opioid crisis is a big deal not just for employers but for people in general — but it is an issue employers must address.

“Why does this topic matter? Because 50,000 Americans die from opioid overdose each year. It is the leading cause of death of Americans under 50. Right now there are about 100 deaths a day, and the biggest issues stretch from New England to Appalachia,” Vance explained.

Employers play an important role in this crisis. Employees may be prescribed opioids after a workplace injury — and the pleasurable sensation some receive from abusing the drugs may lead to dependency. That dependency leads to drowsiness, shifting moods, anxiety and depression, which in turn may cause an employee to start embezzling money to pay for their habit and the employee missing work — “lots of issues,” Vance said. “Employers often interact with employees every day, often more than a person’s family, so they are more likely to see the signs of abuse first.”

The other drug, marijuana, is a bit muddier of an issue because of various state allowances. Some states still consider marijuana 100 percent illegal; some have allowed for medicinal usage; and more and more are legalizing recreational use. “A lot of states now allow marijuana use, but how do you address that at work?” Vance asked. “Each state law varies regarding employer obligations and worker rights. It’s becoming tougher and tougher to deal with what employees are ingesting during their time off.”

What is clear is that employers do not need to allow use or possession of marijuana at work, and employers do not have to accommodate medical marijuana use – but they can’t discriminate if employees have a prescription when hiring, at least in Massachusetts (as was shown in the Barbuto vs. Advantage Sales & Marketing case).

Zero-tolerance policies and practices may still be permitted by employers once a worker is brought on board, but pre-hire testing can be an issue because some tests look only for marijuana use and do not differentiate between those who use CBD (cannabidiol, which does not cause a high) and those who partake of THC (tetrahydracannabinol, which does cause a high). Vance pointed out that it is still a federal law that marijuana use and possession is illegal, even though specific states allow it. Some states have very specific employment rules and laws regarding marijuana, which is something to keep in mind if employees have to work across state lines.

The OSHA drug testing rule enacted Dec. 1, 2016 stated that post-accident drug testing is necessary if the employer has a reasonable basis for concluding that drug or alcohol use could have contributed to the injury or illness; if a test will determine if the impairment existed at the time of accident/injury; or state law allows such testing. Vance said that before testing, employers should also consider whether they have a reasonable basis for concluding drug use could have contributed to injury – “driving a forklift off a dock is not compatible with sober operation,” Vance said as an example.

However, in October 2018 OSHA issued guidance that appeared to roll back the December 2016 testing rule, which allows random drug testing, testing unrelated to the reporting of a work-related injury/illness, testing under a state workers’ comp law, testing under other federal law and testing to evaluate the root cause of a workplace incident that harmed/could have harmed employees.

“Reasonable suspicion language can be compliant with the new rule” as a reason for testing, Vance said. For example, an employee acting erratically is a better reason to test than an accident occurring. The tell-tale odor of marijuana can be a reasonable suspicion – “but make sure you have a witness who can confirm it,” Vance advised.

Vance noted you can often sense marijuana or alcohol use, but opioids are a little more discreet. “You need to create an environment where employees are more likely to disclose opioid-related issues. This is an evolving area of human resources and business management; you must balance the concern of being viewed as an employer who attempts to invade employees’ private home life versus later dealing with an employee who quits, overdoses or creates a safety concern due to an addiction you may have ignored,” he said. “Education is huge, especially if an injury leads to opioid addiction.”

Ultimately, it is up to each employer what they wish to allow. Vance said at a minimum, a good drug and alcohol policy should contain the following provisions: the policy should inform employees about why and when testing may occur and what may happen if the test is failed; the policy should clearly define what substances are prohibited (illegal drugs and legal drugs that are abused or used without a prescription); and working while under the influence of drugs or alcohol should be prohibited.

The policy should prohibit the possession, distribution, dispensation, transfer and sale of prohibited substances on company premises, on company time or while in company vehicles. It should also advise employees that the employer reserves the right to search all company property and any personal property or personal vehicles on company premises.

“It’s your business, but reconsider zero-tolerance drug testing failure policies,” Vance concluded. “The consequences could be dire if someone who is addicted suddenly loses their job. Give them a second chance, help them with employee assistance program, do more testing. It could mean [you] not just save an employee’s job but an employee’s life.”