High stakes: State cannabis laws make contractors' obligations hazy
As medical and recreational use of marijuana becomes more acceptable — and in some instances, legal — contractors are faced with a growing pool of candidates that are testing positive.
Many states in the U.S. have loosened up their regulation and restriction laws related to cannabis, or marijuana, in recent years, with 33 states and Washington, D.C., currently allowing it for medical reasons. Ten of those states and D.C. allow adult recreational use.
For employers, including those in the construction industry, this new status of marijuana, which used to be an illegal substance everywhere and under all circumstances in the U.S., presents some challenges — not the least of which is finding workers who can pass a hiring or post-accident/incident drug test.
"It’s kind of the Wild West,” said Tom Cecich, president of safety, health and environmental management consulting firm TFC & Associates and advisor to risk management firm Avetta. “You’ve got state laws that decriminalize the use of marijuana specifically, but, obviously, you have a federal law that can’t be violated.”
The federal government classifies cannabis as a Schedule I drug under the Controlled Substances Act, which means the government considers it to have no accepted medical use and carries with it a high chance of user abuse. Physicians aren’t allowed to prescribe Schedule I drugs, so one can see how the federal law is in conflict with those regulating and advocating for medical marijuana.
In fact, last year, the Drug Enforcement Administration moved cannabis-containing substances with up to 0.1% tetrahydrocannabinol (THC) — the psychoactive component — that have also been approved by the Federal Drug Administration from Schedule I to Schedule V. The impetus was an anticonvulsant drug called Epidiolex, which contains a cannabis extract called cannabidiol (CBD). If the DEA had not made an allowance for certain cannabinoids, doctors would not have been able to prescribe them, even though they had FDA approval.
In their attempts not to run afoul of the federal requirements regarding cannabis, and to align themselves with the wishes of their clients, Cecich said most large construction companies have decided that a positive drug test is a reason not to hire or, under some conditions like an accident, a reason to terminate, especially if the job in question is a safety-sensitive one.
Even where it’s legal.
Unlike alcohol, there is no standard to detect and measure cannabis impairment, only a test that detects use. While psychoactive effects usually last a relatively short period of time, the rate at which cannabis leaves the system varies — in some cases, taking weeks. Also, cannabinoids can be stored in body fat, so the heavier someone is, the longer it can take to clear the body.
“Good employers who want to do the right thing are really being challenged,” Cecich said.
And make no mistake, the contradiction between federal law and state law — exacerbated because there is no way to test for impairment — is taking its toll on the construction industry, which is suffering from a lack of skilled trade workers and many other positions like estimators and superintendents.
Labor conditions are tight in most parts of the country, said Brian Turmail of the Associated General Contractors of America, and adding to that problem is the fact that much of the industry has a zero-tolerance drug-use policy. Most companies don’t want to be in the business of deciding how their employees spend their time off work, he said, but they have a legal obligation to make sure their workers are sober when on the job — especially if that's a jobsite with heavy equipment and various hazards.
In Colorado, Cecich said, there’s anecdotal evidence that as many as 15% or 20% of applicants test positive for a history of cannabis use.
Adding to the confusion are conflicting state hiring laws, making it almost impossible for multistate contractors to have one drug testing policy across their entire operation.
For example, in Maine, said attorney Benton Bodamer of Dickinson Wright in Columbus, Ohio, employers were initially not allowed to discriminate against their employees or new hires for off-duty consumption. Employers could generally only take action if they could prove the employee in question consumed marijuana on the job, although, he added, more recent updates have softened and confused that black line.
In Colorado, said Turmail, a state with some of the most liberal use laws, courts have upheld an employer’s right to zero-tolerance policies — even when it comes to medical marijuana — and to terminate even if there is no evidence of impairment.
Some state courts, said attorney Wendy Lane of Greenberg Glusker Fields Claman & Machtinger LLP in Los Angeles, have started looking at medical marijuana accommodations that employers could make before terminating, possibly providing a solution for contractors who are interested in a middle ground.
In Massachusetts, she said, a court held that an employer has an obligation to determine whether an employee using medical marijuana is impaired and to evaluate potential accommodations involving scheduling and nature of duties and to look at how safety-sensitive the job is before termination.
“The court said, unless you engage in an interactive process,” said Lane, “how can you assess whether you’re reasonably accommodating this person?”
Insurance costs also come into play. Insurance carriers will likely charge more for general liability, workers’ compensation or other forms of business insurance if an employer chooses not to perform pre-employment drug testing, but contractors have to weigh how much a higher premium would cost versus not being able to have enough labor to bid on and plan for new work.
Employees also need to keep in mind that they can be denied all or a portion of workers’ compensation benefits in many states if they test positive for marijuana after an accident. Even in Colorado, workers can lose 50% of their benefits if they were impaired at the time of the accident. But with no sure test for impairment, employees are taking a chance that a decision on benefits will not go in their favor.
Where does all this leave contractors?
First, using cannabis on the job will always be a no-no in the construction industry and most likely a fireable offense. Second, contractors working on federal projects have no option but to maintain a drug-free workplace.
For everyone else, Bodamer said there are several things that need to happen to end the confusion about marijuana consumption on the part of both employers and employees, and perhaps find a solution for those testing positive but who are not “high” on the job:
- Employers should be thoughtful about their drug testing policies, develop coherent approaches and understand the repercussions. They need to be aware if and how their policies will exclude future candidates or affect current employees.
- There needs to be clarity on how to differentiate between who is impaired and who is not, with special attention to those who test positive because of participation in a state-compliant medical program.
- There also needs to be clarity between state and federal law, which could would happen with ppassage of the STATES (Strengthening the Tenth Amendment Through Entrusting States) Act, a bipartisan bill that would amend the Controlled Substances Act to allow states to establish their own marijuana laws, which would be exempt from federal enforcement.
Turmail said the AGC has been exploring and monitoring the issue and that the key might be in developing a scientifically reliable impairment test. With such an advancement, he said, insurance companies are more likely to evolve and test for impairment, not just use.
As a side note, there is also some evidence, Turmail said, that medical marijuana can help relieve the chronic pain that plagues many construction workers and possibly assist with potential opioid dependency issues.
In order to be able to compete, Cecich said, some contractors have chosen to forego testing or allow someone who tests positive to fill a non-safety-sensitive position. This could include estimators or someone in the accounting department but would most likely be an option only for smaller companies and those with less risky scopes of work.
For safety-sensitive positions like crane operators, however, not much is going to change.
If a client asked Lane if it could overlook a positive test for someone applying to operate dangerous machinery like a crane or other heavy equipment, she said she might initiate a discussion about engaging in the interactive process with that person to determine how he or she could fill some role but would be reluctant to advise the company employ someone who tests positive for that position.
“It’s not smart to take on that liability,” she said.
However, if individuals are motivated and really want the job, she said, employers might think about giving them another opportunity if the previous use was recreational.
“They could say, ‘Let it clear the system,” Lane said, “ ‘and we’ll give you a second chance.’ ”
Follow Kim Slowey on Twitter