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Addressing Drug Use's Changing Social and Legal Enviroment In Addressing Drug Use’s Changing Social and Legal Enviroment in Your Workplace Policies by Dr. Todd Simo, HireRight and Katie Goetzl, Littler Mendelson An Altegrity Company Introduction Drug testing is, by no account, a brand-new phenomenon in the American workplace. Perhaps inspired by the passage of the Drug Free Workplace Act in 1988, organizations all over the United States have since increasingly adopted employment policies that require their applicants and employees to be subject to testing for the illegal use of controlled substances. This growing adoption can be attributed to a mixture of influences, like social pressure, regulatory mandates, the rising costs of health insurance and workers’ compensation claims, safety issues, concerns over liability and litigation, and greater awareness of corporate citizenship. Today, nearly 80 percent of employers require some sort of drug testing from their workforce.1 Just as employers have adapted their policies and approaches to drug testing over the last few decades to respond to a powerful confluence of social, economic, and regulatory pressures, they are continuing to contend with changes in these influences. One such key shift centers on the legal and regulatory framework of drug use. New laws are emerging—at a fairly rapid rate—at the state level that address critical issues like the medical and recreational use of marijuana.2 This evolution at the state level is compounded by ever- changing federal attitudes toward enforcement. Employers’ drug testing policies are also being impacted by cultural and social transformations. Acceptance of marijuana use is growing among Americans, a social trend that has definitely influenced the transformation of laws at the state level. Another important social impact for employers is the increasing awareness of prescription drug use and abuse and the corresponding effects on the workplace. Organizations are grappling with two intertwined issues: strong rates of recreational use coupled with a concerning trend of employees reporting to work under the influence of often powerful prescription medications, even when they are using these drugs properly and as prescribed. So, whereas once upon a time many employers could utilize a blanket “drug-free workplace” policy that centered solely on illegal drugs, an ever-evolving regulatory and social environment is forcing many organizations to take a closer look at their internal programs. Specifically, organizations should determine whether their drug testing policies address evolving legal and cultural attitudes toward marijuana, as well as a robust phenomenon of prescription drug use and abuse at work. Employers are deciding whether the historical approach of taking adverse action against a candidate or employee with a failed drug test is still valid today, while they are also grappling with how to address workers who are either using prescribed medications in ways not sanctioned by the employees’ doctors or coming to work under the influence of these potentially powerful drugs. To help organizations navigate these unfamiliar waters, it may be beneficial to better understand the changing environment in more detail, as well as to explore some best practices utilized by other employers, which have proven successful in helping them in similar circumstances. 1 HireRight, “2013 Employment Screening Benchmarking Report”. 2 This eBook uses the terms “marijuana” and “cannabis” interchangeably. 1 Marijuana: A Whole New Paradigm A Brief History Though marijuana has been a popular topic in the news over the last few years, it is certainly no recent invention. Accounts of the medical use of cannabis, the plant from which marijuana is derived, can be found in a number of historical records, including those from ancient China, Egypt, and Greece. References to marijuana speak to its variety of medical applications, such as a salve, anti- nausea treatment, diuretic, and laxative. In modern times, cannabis has continued to be used to treat a number of medical ailments. Throughout the nineteenth century, cannabis was a popular pain reliever in the Western world, and medicinal preparations of it were commonly found in American pharmacies. With the turn of the century, social attitudes toward many drugs, like marijuana and morphine, began to shift, and with them, came stricter regulation of these drugs. Over the next several decades, increased regulation eventually led to outright criminalization of marijuana. In 1970, Congress passed the Controlled Substances Act (CSA), which categorizes a wide range of drugs according to their potential for abuse, appropriateness for medical use, and general safety. Marijuana was categorized alongside heroin and LSD as a Schedule 1 drug, which not only made it illegal under federal law, but also strongly communicated that it had no legitimate medical purpose. Nevertheless, a small but vocal opposition to marijuana’s Schedule 1 classification arose, purporting that marijuana was relatively safe, had a low propensity for abuse, and boasted a number of medical purposes.3 Specifically, these medical marijuana advocates pointed to the drug’s efficacy in treating the symptoms and side effects of such debilitating conditions as cancer, HIV/AIDS, epilepsy, multiple sclerosis, and glaucoma. Medical Marijuana: Two Decades of Transformation In the mid-1990s, a grass-roots campaign organized in California eventually led to the passage of Proposition 215, which protected patients, caregivers, and physicians from state-level criminal prosecution for the possession, use, cultivation, or recommended use of medical marijuana. The new statute introduced an era of ongoing tension between state and federal law, since under the latter, marijuana for any purpose was still illegal. As a result, the U.S. Department of Justice (DOJ) initiated criminal prosecution of physicians who recommended marijuana to their patients, sparking a number of lawsuits by the doctors and their patients. A class action lawsuit, Conant v. Walters, resulted in a permanent injunction by a federal court, essentially allowing physicians to discuss with and recommend to their patients the use of marijuana as part of medical treatment. With the decision in California, the tide was beginning to turn, and more states were also implementing similar statutes. By the end of the decade, five states in total had medical marijuana laws on the books. 3 HOPES (Huntington’s Outreach Program for Education, at Stanford), “Medical Marijuana Policy in the United States,” May 15, 2012. Available at http://www.stanford.edu/group/hopes/cgi-bin/wordpress/2012/05/medical-marijuana-policy-in-the-united-states/ 2 As of today, 19 states plus the District of Columbia all permit the medical use of marijuana (see sidebar). Most of these laws were U.S. States and Districts passed following a direct voter referendum, indicating strong Where Medical Marijuana social support. Taken as a whole, these laws were designed to Is Permitted decriminalize the therapeutic use of marijuana by individuals with 1990s: serious medical conditions—but that is where the similarities end. 1. California, 1996 Across the spectrum of this landscape, there is a broad diversity in 2. Alaska, 1998 the particular language of each law. There is little commonality on 3. Oregon, 1998 such issues as: 4. Washington, 1998 » How much cannabis may be legally possessed (varies from a 5. Maine, 1999 single ounce to 1.5 pounds) 2000s: » How a patient can acquire the marijuana (some permit cannabis 6. Colorado, 2000 plants at home, and others have a dispensary system regulated 7. Hawaii, 2000 by the state) 8. Nevada, 2000 9. Montana, 2004 » The specific medical conditions that allow a person to qualify for 10. Vermont, 2004 medical marijuana 11. Rhode Island, 2006 » What sort of registration process the patient has to undergo 12. New Mexico, 2007 » How a patient proves a medical marijuana exemption to law 13. Michigan, 2008 enforcement 2010s: State vs. Federal Law 14. Arizona, 2010 This lack of consistency certainly makes it challenging to make 15. District of Columbia, 2010 broad statements about medical marijuana laws in the U.S. 16. New Jersey, 2010 Nevertheless, it is important to keep in mind that, because of 17. Delaware, 2011 cannabis’s classification as a Schedule 1 drug, physicians cannot 18. Connecticut, 2012 prescribe it (only drugs regulated by the U.S. Food and Drug 19. Massachusetts, 2012 Administration may be prescribed), only recommend it to their 20. Maryland, 2013 patients for use as part of therapeutic or palliative medical treatment. Additionally, there is no uniform governance or guidance for which specific medical conditions marijuana may be an appropriate treatment. State laws vary greatly; some are incredibly specific and limit recommendation of cannabis to debilitating illnesses or conditions, while others are decidedly more liberal and provide room for interpretation. For example, in New Mexico, an individual must suffer from one of 15 named conditions in order to qualify for medical marijuana use. California’s laws are much more flexible, and an individual who has any “illness for which marijuana provides relief” can be recommended cannabis as part of his/her medical treatment. This lack of specificity opens the door to abusive practices. In the recent film 50/50, a character mentions, while smoking marijuana recreationally, that he is using it to treat his “night-blindness”. Though intended as humor, the scene sheds light on the potential for some people to obtain
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