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Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers

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Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers 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,
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