ACOEM GUIDELINES
Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers
Joint Guidance Statement of the American Association of Occupational Health Nurses and the American College of Occupational and Environmental Medicine
Jennan A. Phillips, PhD, MSN, RN, Michael G. Holland, MD, Debra D. Baldwin, NP-C, PhD, Linda Gifford Meuleveld, RN, COHN-S, CCM, CPDM, Kathryn L. Mueller, MD, MPH, Brett Perkison, MD, MPH, Mark Upfal, MD, MPH, and Marianne Dreger, MA
arijuana (cannabis) is the most fre- tions require an assessment of the safety of adequate study. Other articles are also cited M quently used illicit drug of abuse in marijuana use by the American workforce. when appropriate to clarify issues that may the United States and worldwide. Moreover, Although studies have suggested that mari- not have been addressed by studies qualify- it is second only to alcohol as the most preva- juana may be used with reasonable safety in ing as evidence. lent psychoactive substance seen in cases of some controlled environments, there are po- 1,2 driving under the influence of drugs. It is tential workplace consequences involved in LEGAL IMPLICATIONS OF also by a wide margin, the drug most of- its use that warrant scrutiny and concern. ten detected in workplace drug-testing pro- The potential consequences of mari- MARIJUANA LEGISLATION grams. The primary psychoactive substance juana use in the workplace include the risk In late 2009, the US Department of in marijuana is delta-9-tetrahydrocannabinol, and associated cost of adverse events and Justice initiated a change in marijuana en- known simply as THC. Present in steadily in- the loss of productivity. These safety con- forcement policy by issuing a memorandum creasing concentrations in street-purchased, cerns and the changing legal scene have encouraging federal prosecutors not to prose- smokeable plant material, the THC content led the American College of Occupational cute individuals who distribute marijuana for medical purposes in accordance with state in marijuana averaged 3% in the 1980s, but and Environmental Medicine (ACOEM) and 9 by 2012 it had increased to 12%.3 the American Association of Occupational law. Nevertheless, after voters in Colorado The US government classifies mari- Health Nurses (AAOHN) to develop this and Washington approved the recreational juana as a Schedule I drug (defined as those guidance document to assist occupational use of marijuana, the Department of Justice drugs with no currently accepted medical health professionals and employers in iden- issued another memorandum in August 2013 use and a high potential for abuse,4 and the tifying and addressing impairment issues re- that reiterated its right to contest the legality use/possession of which is subject to pros- lated to the use of marijuana and prevention of state marijuana laws, stating that the De- ecution). Workers covered by federal drug- of injuries related to impairment. partment “expects states like Colorado and testing programs are uniformly prohibited This guidance summarizes current ev- Washington to create strong, state-based en- from using marijuana at any time. In addition, idence regarding marijuana consumption, forcement efforts . . . and will defer the right to challenge their legalization laws at this federal law allows employers in every state to discusses possible side effects including tem- 10 prohibit employees from working while un- porary impairment as it relates to the work- time.” This discordance about use, regula- der the influence of marijuana and are per- place, reviews existing federal and state laws tion, and legislation places employers in the mitted to discipline employees who violate and legal implications for health care profes- challenging position of maintaining compli- this prohibition. sionals and employers, and suggests various ance with divergent and evolving legislation, Nevertheless, with public attitudes to- strategies available to employers for monitor- while continuing to provide a safe workplace. ward marijuana use changing, prohibitions ing workers for marijuana use. It is outside for its consumption outside of federal law the scope of this article to address any poten- Americans with Disabilities Act now vary from state to state. Although the tial medical benefit of marijuana. The Occupational Health and Safety possession and use of marijuana continue to Studies conducted to evaluate the ef- Act of 1970 contains a general duty clause be prohibited by federal law, numerous states fects of marijuana drug use by workers have that requires employers under its jurisdiction and the District of Columbia currently have demonstrated variable risk. This variability to, among other things, maintain conditions enacted laws regarding marijuana use that relates to study design, demographics, work or adopt practices reasonably necessary and conflict with federal law and policy,5 with type, and potential confounders (eg, gen- appropriate to protect workers on the job.11 legislation pending in other states.6–8 eral risk-taking behavior among illicit drug This duty may necessitate exclusion of those This changing legal environment and users). This discussion on the effects of mari- who are impaired or potentially impaired be- the evolving scientific evidence of its effec- juana is based on a literature search of the cur- cause of marijuana use. As long as marijuana tiveness for treatment of select health condi- rently available evidence (see the Appendix). is illegal under federal law, employers who Articles were graded using the following cri- fire or refuse to hire employees for using mar- From American College of Occupational and Envi- teria: inadequate for evidence due to low- ijuana are not in violation of the Americans ronmental Medicine, Elk Grove Village, Illinois. quality research; adequate for evidence (+); with Disabilities Act (ADA) or any other fed- The authors declare no conflicts of interest. ++ Address correspondence to: Jennan A. Phillips, PhD, or high quality ( ). High-quality studies, eral antidiscrimination statute, although there MSN, RN, University of Alabama at Birmingham, meta-analyses, or multiple adequate studies are restrictions on drug testing.12 NB 316, 1720 2nd Avenue, S, Birmingham, AL with the same conclusion qualified as good Nevertheless, some states limit em- 35294 ([email protected]). evidence for the guidance purposes of this ployer action against workers who use mar- Copyright C 2015 by American College of Occupa- tional and Environmental Medicine document. Statements referring to evidence ijuana according to state standards. If drug DOI: 10.1097/JOM.0000000000000441 without a qualifier reflect the results of an testing is done, the decision to test must be r JOEM Volume 57, Number 4, April 2015 459
Copyright © 2015 American College of Occupational and Environmental Medicine. Unauthorized reproduction of this article is prohibited. r Phillips et al JOEM Volume 57, Number 4, April 2015
job-related and necessary for business, and DFWA does not specifically require drug would violate a contract or licensing-related conducted when there is evidence of a safety testing, but it does require that employers benefit under federal law.20 or job performance problem. Currently, the (1) publish and distribute a policy statement, States that to date have passed ADA does not require employers to permit (2) specify actions that will be taken against laws legalizing recreational marijuana do marijuana use as a reasonable accommoda- employees who violate the policy, and (3) not provide protections for employee tion for an individual with a disability, even provide education in the workplace about discrimination.22 Colorado presently allows if that person is a registered medical mari- the dangers of drug use and available coun- employers to prohibit the use of marijuana juana patient. In some states, court rulings seling and employee assistance programs.9 at work. Nevertheless, another state law, the involving the use of marijuana for medical Employers are not required to fire employees lawful off-duty conduct statute, prohibits em- purposes have held that employers are un- on the basis of the results of a positive drug ployers in this at-will employment state from der no obligation to accommodate medical test. The Act requires employees to abide firing employees for engaging in lawful con- marijuana users, regardless of whether or not by the terms of the employer’s policy and duct while off-duty and off premises during its use is permitted by state law.13 The basis notify the employer within 5 calendar days nonworking hours.23 Conflicting legal deci- of the rulings has been that a person “cur- if they are convicted of a criminal drug sions have arisen with regard to employees rently engaging in the illegal use of drugs” violation in the workplace.9 The contracting who have been fired for testing positive for is not a “qualified individual with a disabil- or granting agency must be notified within marijuana, and as of early 2015, this issue ity,” and marijuana is still an illegal drug for 10 days after receiving notice that a covered is under review by the Colorado Supreme the purposes of federal law. Nevertheless, the employee has been convicted of a criminal Court. Until state and federal laws coincide, ultimate effects of specific state laws on this drug violation in the workplace.9 Employees legal challenges and uncertainty in the work- issue are yet unknown.14 who work for federal contractors may be place will continue.23 subject to discipline, including termination Although state laws vary, laws regu- Drug and Alcohol Testing if marijuana use is proven, regardless of lating marijuana require employers neither Regulations whether its use is permitted by state law.18 to permit drug use in the workplace nor The majority of private employers to tolerate employees who report to work across the United States are not necessarily Federal Law Enforcement and impaired. For this reason, employers may requiredtodrugtest,andmanystateand Transportation of Marijuana institute drug-free-workplace policies to help local governments have statutes that limit or Across State Lines ensure that employees come to work in an prohibit workplace testing unless required Medical marijuana patients are also unimpaired state and do not endanger them- by state or federal regulations due to the subject to federal and local charges of trans- selves or others while working. Reconciling nature of the job. Guidance issued by the US porting marijuana if they cross state lines varying and dynamic state laws in regard to Department of Transportation (DOT) for its with the drug, even if they are traveling be- legality, permitted use in the workplace, and Drug and Alcohol Testing Regulations state tween states that allow medical marijuana. lawful drug testing can be challenging. Every that marijuana use remains unacceptable As the US Transportation Safety Administra- employer should consult with legal advisors for any safety-sensitive employee subject to tion enforces federal rules on commercial air- to ensure that they comply with any applica- drug testing under DOT regulations.9 This lines, transporting marijuana on an airplane ble state or local laws and design their testing safety-sensitive category includes pilots, is illegal and can lead to federal drug trans- programs to withstand legal challenges.24 bus and truck drivers, locomotive engineers, portation charges.19 Federal agencies may, in subway operators, aircraft maintenance per- some situations, also arrest authorized users. MEDICAL ISSUES sonnel, transit fire-armed security personnel, Regardless of the legal consequences, and ship captains, among others.9 State Laws the medical implications of marijuana use for Federal agencies conducting drug With so many states and the District of the workforce must be considered. In addition testing must follow standardized procedures Columbia having enacted medical marijuana to the risk of injury due to impairment, em- established by the Substance Abuse and laws or decriminalized its use, an employer’s ployers must also consider the possibility that Mental Health Services Administration legal right to fire or refuse to hire an ap- increases in absenteeism and presenteeism (SAMHSA).15 Private nonunion employers plicant for failing an employment drug test may occur as marijuana-containing products who require drug testing for applicants due to off-the-job medical marijuana use de- become increasingly available to workers. and/or employees are usually not required pends on whether the state of employment has In 2007, SAMHSA estimated that to follow SAMHSA’s guidelines, but doing passed a medical marijuana law that includes 8.4% of full-time workers were engaged in so helps to ensure the legality of testing. In employee discrimination protections. Most some type of illicit drug use within the pre- unionized workforces, the implementation states that have legalized medical marijuana ceding month.25 With the legalization of mar- of testing programs must be negotiated do not provide for employee protections, al- ijuana in certain states, this number could through collective bargaining, even when though there are exceptions such as Connecti- climb. A recent poll found that 9.74% of federal regulations require testing.16 cut, Illinois, Maine, and Rhode Island.20,21 534 respondents reported going to work af- Michigan protects an employee’s rights and ter smoking marijuana (the majority reported Drug-Free Workplace Act safeguards against disciplinary action at work obtaining the drug illegally). Although this The Drug-Free Workplace Act for registered patients, except when a worker poll may not reflect the behavior of the US (DFWA), enacted in 1988 to promote safety uses marijuana on site or comes to work im- working population as a whole, the data do and accountability, requires all federal paired. Arizona and Delaware have more ex- indicate the need for clear workplace policies grantees to agree that they will provide plicit statutory language prohibiting an em- addressing workers who use marijuana.26 drug-free workplaces as a condition of ployer from discriminating against a regis- receiving a federal contract of more than tered qualifying employee who has failed a Metabolism and Impairment $100,000 or a federal grant of any value.17 drug test for marijuana metabolites or com- When marijuana is smoked, THC To qualify and remain eligible for federal ponents, except if the employee used, pos- blood levels rise immediately because of funds, these entities are required to make sessed, or was impaired by marijuana at the efficient pulmonary absorption across the continuous good faith efforts to comply worksite during work hours, or if failure to alveolar capillary membrane. THC levels with drug-free workplace requirements. The dismiss an employee who failed a drug test fall rapidly after smoking ceases due to
460 C 2015 American College of Occupational and Environmental Medicine
Copyright © 2015 American College of Occupational and Environmental Medicine. Unauthorized reproduction of this article is prohibited. r JOEM Volume 57, Number 4, April 2015 Joint Guidance Statement
distribution of the substance to the brain toxication at a given blood alcohol concen- now beginning to emerge, numerous stud- and lipophilic tissues, as well as hepatic tration (BAC) than a naive drinker, yet is still ies using driving simulator, road, and psy- metabolism.27 The subjective “high” and as- acutely impaired. chometric tests assessing impairment of the sociated impairment begins rapidly as well, When marijuana- or THC-containing skills necessary for safe operation of a mo- within minutes of the initiation of smoking products are orally ingested, the time to peak tor vehicle caused by cannabis use have been when blood levels are rapidly falling and blood levels and effects are delayed, with performed. Because much of the knowledge THC is distributed into the central nervous lower peak concentrations and longer dura- regarding impairment and accident risk in system. Approximately 10% of the absorbed tion of effects. Bioavailability varies among the workplace due to alcohol intoxication has THC is metabolized by the cytochrome P450 marijuana products, owing to the lipophilic been gleaned from studies of driving impair- (CYP) enzyme system into the equipotent nature of THC—products containing more ment and crash risk, these same types of stud- psychoactive metabolite 11-hydroxy-THC oil or fats tend to increase bioavailability.27 ies can be used to assess impairment in the (THC-OH), which appears in the blood soon Bioavailability is also impacted by first-pass workplace from cannabis. Numerous exper- after the THC peak and then falls off rapidly. hepatic metabolism. Edible products do not imental studies have been performed to as- The major nonpsychoactive metabolite, allow for a titration effect because users can- sess the level of driving impairment in rela- THC-COOH or carboxy-THC, appears later not immediately gauge the effect of the dose tion to the level of THC in serum or plasma. and can last for several hours or even much consumed, and acute psychosis, presumably Early studies of crash risk associated with longer in long-term users.28,29 This metabo- resulting from the higher dose received via cannabis use failed to show significant im- lite is the component commonly assayed in the oral route, has been reported.42 The sub- pairment in cannabis users because some of workplace urine drug-testing programs. jective “high” after oral administration usu- these studies used the presence of the inac- Impairment periods vary with the dose ally occurs approximately 30 minutes after tive carboxy-THC as evidence of drug use. administered and the route of administra- consumption. There is some evidence that In addition, many potentially culpable drivers tion. For smoked marijuana, subjective im- with doses less than 18 mg, impairment de- had blood for active THC drawn hours after pairment begins soon after smoking initia- creases to a level of normal performance being arrested, and even longer from the oc- tion and peaks in about 1 hour and lasts around 5 hours postingestion.43 Asmaller currence of the motor vehicle crash, allow- 3 to 4 hours after smoking. Experimen- study of oral ingestion demonstrated impair- ing metabolism and disappearance of THC tal studies suggest that measurable impair- ment of driving skills up to 10 hours after from the serum. Multiple studies and meta- ment in test subjects lasts approximately 6 ingestion of higher doses. This impairment analyses of experimental studies, including hours.27,30,31 Many studies focusing on the did not occur with lower doses.44 In addi- laboratory, driving simulator, and on-road ex- duration of impairment after acute use were tion, although a state may have regulations periments, found that behavioral and cog- conducted when marijuana typically had a regarding the dose of THC to be used in edi- nitive skills related to driving performance lower THC concentration. Thus, the applica- ble products, it is not clear how this is actually were impaired in a dose-dependent fashion bility of these older study results to today’s being regulated. Thus, consumers may have with increasing THC blood levels. more potent varieties is questionable as the difficulty controlling the dose they consume There is good evidence from a meta- duration of effect may be longer than previ- in edibles. analysis and the following real and simulated ously reported.32,33 The subjective “high” from acute mar- driving studies indicating that marijuana can Some studies have demonstrated ijuana use varies with THC concentration, negatively affect drivers’ attentiveness, per- longer impairment (up to 24 to 48 hours) dose, route of administration, and users’ ception of time and speed, and ability to draw on specific performance measures, but these degree of experience with the drug. Com- on information obtained from experiences.43 studies are limited and the few studies show- mon self-described effects are relaxation, Traffic studies of crash risk have shown that ing this effect used small samples.34–36 In ad- euphoria, relaxed inhibitions, sense of well- when marijuana was present in drivers’ blood, dition, no comparison of residual peak per- being, disorientation, altered time and space they were much more likely to be at fault, formance impairment was associated with perception, giddiness, increased appetite, and there was a dose–response relationship, situations encountered every day and ac- and a more vivid sense of taste, sight, smell, with drivers having higher THC concentra- cepted in the workplace (ie, poor sleep the and hearing. Commonly observed central tions being more likely to be deemed culpable night before, episodic minor illnesses, the nervous system effects include lack of for the crash.2,48–51 use of cold remedies). As described previ- concentration, impaired learning and mem- Studies have confirmed that while us- ously, these residual impairment studies were ory, alterations in thought formation and ing cannabis, individuals demonstrate im- also conducted when cannabis had a much expression, drowsiness, and sedation. These paired motor performance in both driv- lower potency than what is available today. It psychological effects are accompanied by ing simulator and on-the-road tests.37,52–54 is conceivable that residual impairment may physiological manifestations of conjunctival In the driving studies, the strongest decre- actually be more prolonged and problematic injection, a significant increase in heart ments were in drivers’ abilities to con- with today’s higher potency marijuana. The rate over baseline, dry mouth and throat, centrate and maintain attention, estimate majority of studies of impairment related to increased appetite, and vasodilatation.40 One time and distance, and demonstrate coordi- driving and cognition show return to a gen- study found that pupil dilatation, conjuncti- nation on divided attention tasks—all im- erally nonimpaired state within 3 to 6 hours val injection, and decreased ocular reaction portant requirements for operating a motor after smoking marijuana among occasional to light were the physiological symptoms vehicle.30,31,35,36,38,55,56 recreational users. most commonly related to marijuana use.44 A large population-based, case– Impaired behavior from acute use dif- Some of these physiological signs are used control study of blood levels from more than fers between occasional users and long-term by drug recognition expert law enforcement 10,000 vehicle crashes in France revealed users. There is good evidence that chronic officers who conduct roadside field sobriety an increased dose-dependent odds ratio for a frequent marijuana users exhibit less impair- tests of suspected drug-impaired drivers.45–47 crash, from 2.18 for THC less than 1 ng/mL, ment from acute THC than do occasional to 4.72 for THC 5 ng/mL or more.57 Addi- users, but the degree to which impairment Assessing Suspected Marijuana tional studies have found that drivers with a is mitigated in safety-sensitive activities is Impairment THC-positive blood test were 3 to 6 times unclear.37–41 This finding can be likened to Although studies that assess impair- morelikelytobeinvolvedinacrashthan the chronic drinker who has less apparent in- ment in the workplace due to marijuana are drivers without THC.27,30,31 In a study of