CANNABIS@WORK: EMPLOYEE ASSISTANCE PROFESSIONALS TOOL KIT Safety •Todays Cannabis •SS employees •Non-safety sensitive •Impairment v. presence •Reasonable susp. testing •Post accident testing Employee Rights •Random testing Compliance •Non-safety sensitive •Regulated industries •MJ as medicine •Multistate/site •MJ as recreation employers •Insurance reimb •OSHA - post accident •Represented •Financial impact employees Employer Policies DFWP Medical Productivity Legislation & Recreational •Recruitment Litigation •Pre-employment testing •Landmark cases •Impact of use •Unemployment •Fitness for duty benefits •Underage use •COE/LCA •Addiction and tx •Trends Flexibility •Workers comp •Accommodation •Job modification •Virtual workforce 1 Employee Assistance Professionals Tool Kit: Cannabis@Work CANNABIS@WORK: EMPLOYEE ASSISTANCE PROFESSIONALS TOOL KIT OVERVIEW Marijuana is no longer just an issue for employers in a few states. As marijuana use, both medicinal and recreational, continues to become legally accepted in the U.S., and it may ultimately be removed as a Schedule I drug under the Controlled Substances Act. This will change how employers approach Cannabis at work. Several major societal trends are converging to make cannabis in the workplace one of the biggest challenges facing employers and employee assistance (EA) professionals. The changes start with widespread increased tolerance of cannabis consumption and a decreased sense of risk. Cannabis, known as marijuana among other names, is a psychoactive drug from the Cannabis plant intended for medical or recreational use. The main psychoactive part of cannabis is tetrahydrocannabinol (THC); one of 483 known compounds in the plant, including at least 65 other cannabinoids. Cannabis (marijuana, hashish, THC, kief and a variety of other forms) can be used by smoking, vaporization, within food, or as an extract. Over the past two decades cannabis has emerged as a common treatment for chronic pain, insomnia, anxiety and a number of other diseases. The number of employees holding legitimate medical cannabis prescriptions continues to increase. Recreational use of cannabis is legal in an increasing number of states. Cannabis is available in these states through government-regulated outlets, much like alcohol. But employers can’t deal with cannabis the same way they deal with alcohol. At issue is how long cannabis stays in a person’s system — weeks or more — when compared with alcohol and other drugs, which are typically excreted within hours. It’s a very confusing message because presence does not equal impairment. Just because an employee tests positive for cannabis does not necessarily mean the employee is cognitively impaired or poses a safety risk. As legalization spreads in the states, the U.S. Controlled Substances Act continues to classify marijuana as a prohibited Schedule I drug, with no recognized medical or other lawful use. In addition, while not mandating drug testing, the federal Drug Free Workplace Act requires federal contractors and recipients of federal grants to prohibit use of illegal drugs — including marijuana — in the workplace. The U.S. the Department of Transportation takes the position that, even in states that allow medical and/or recreational cannabis, “it remains unacceptable for any safety- sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use cannabis”. Furthermore, the U.S. Americans with Disabilities Act (ADA) specifically excludes an individual "currently engaged in the illegal use of drugs" from the Act's definition of a “qualified individual with a disability”. Canada has taken a different approach and employers there have the responsibility to accommodate for the use of cannabis as medicine. The Trudeau government is expected to introduce legislation 2 Employee Assistance Professionals Tool Kit: Cannabis@Work this year that will legalize recreational cannabis use all across Canada by July 2018. Forty-five % of respondents to a HR member survey of the Human Resources Professionals Association do not believe their current workplace policies address potential issues that could arise due to cannabis legalization. While no precise figures are available, it seems clear that the cumulative effect of these trends is that more workers are using cannabis. Positive tests for cannabis use continue to climb in both federally mandated, safety-sensitive workplaces, such as transportation and nuclear plants, and general U.S. workforces, according to a study released in May 2017 by Quest Diagnostics Inc. In saliva testing, positive cannabis tests increased nearly 75% to 8.9% of the general U.S. workforce in 2016 from 5.1% in 2013. Positive cannabis tests also increased in both urine testing — 2.5% in 2016 vs. 2.4% in 2015 — and hair testing —7.3% in 2016 compared to 7% in 2015 — in the same population. States such as Colorado and Washington, where cannabis has been legal for recreational use for several years, saw some of the biggest leaps for workers in safety-sensitive jobs. In that category, Colorado’s numbers jumped 27% from 2015 to 2016 and Washington state’s rose 19%. Clearly this poses a challenge for employers who are rightly concerned about cannabis’s effect on workplace safety and productivity. Federal law places very few limits on employee drug testing and leaves policy-making largely to the discretion of the states. Under most state law employers are permitted to enact drug-free policies within the workplace. Using the Federal Drug Free Workplace as a model an employer may compel an employee to submit to a drug test. If a drug is found in an employee’s system, this gives the employer the right to terminate the employee, and the employee may forfeit his or her eligibility for workers’ compensation benefits. But this picture is changing rapidly. Arizona, Delaware, and Minnesota are the states that have enacted statutes that prohibit an employer from discriminating against an employee for using medical cannabis. In those states, the statutes limit an employer’s ability to discipline an employee for a positive drug screen relating to medical cannabis use. Massachusetts’ highest court ruled in July 2017 that employers can be held liable for disability discrimination if they fire an individual for using legally prescribed cannabis, an interpretation attorneys say could spread to other states and force employers to consider making exceptions to drug-free policies to accommodate workers’ medical needs. It is inevitable that the intersection of personal rights and public safety will collide when it comes to the use of cannabis. This will be playing out in the courtrooms across the country for quite some time. Many employers feel caught between a rock and a hard place: Should they tighten policies to exclude users from their payroll or loosen them to prevent alienating otherwise qualified employees? Also at issue are pre-employment drug tests as a way to maintain a safe workplace. You may hear about employers who are no longer doing pre-employment testing or have taken cannabis off the panel because they can’t find enough clean candidates in the job pool, while other employers say they will always test and maintain a zero tolerance policy. Every employer will need to decide where they stand and how to approach these issues and EA professionals are being called upon to help. 3 Employee Assistance Professionals Tool Kit: Cannabis@Work The Objective This is the first in a series of publications intended to give EA professionals information to assist their companies and clients. We recognize that this is rapidly shifting territory, so this is a snapshot of the state of cannabis in the workplace in the Fall of 2017. The Tool Kit is organized in sections starting with the foundation of employer policies. Areas addressed are 1) Employer Policy, 2) Safety, 3) Compliance, 4) Productivity, 5) Flexibility, 6) Legislation and Litigation, and 7) Employee Rights. This is the first installment covering policy issues and safety concerns. We encourage all EA professionals to use the info in these first two sections of the Toolkit to help you assist your organizations navigate the complex and challenging area of Cannabis@Work. Safety •Todays Cannabis •SS employees •Non-safety sensitive •Impairment v. presence •Reasonable susp. testing •Post accident testing Employee Rights •Random testing Compliance •Non-safety sensitive •Regulated industries •MJ as medicine •Multistate/site •MJ as recreation employers •Insurance reimb •OSHA - post accident •Represented •Financial impact employees Employer Policies DFWP Medical Productivity Legislation & Recreational •Recruitment Litigation •Pre-employment testing •Landmark cases •Impact of use •Unemployment •Fitness for duty benefits •Underage use •COE/LCA •Addiction and tx •Trends Flexibility •Workers comp •Accommodation •Job modification •Virtual workforce 420 Friendly Zero Tolerance 4 Employee Assistance Professionals Tool Kit: Cannabis@Work Section 1: Policy Development When it comes to cannabis and workplace safety, the message to employers with workers in states where medical and/or recreational cannabis is legal is: rethink testing and rewrite your policy. Employee assistance (EA) professionals are being asked to help employers find their way through this rapidly shifting challenge. Cannabis (cannabis) is the most frequently used illicit drug of abuse in the United States and worldwide. Moreover, it is second only to alcohol as the most prevalent psychoactive substance