Americans’ voracious appetite for reality-altering drugs like marijuana and opioids is causing even bigger headaches for employers.
The spreading reach of state laws legalizing medical and recreational marijuana use create fresh challenges for employers who want to maintain drug-free policies and conduct drug tests of both job applicants and existing employees.
Some states have passed laws to protect the rights of employees who use marijuana, as long as they are not high when they’re on the job or work in safety-sensitive positions, such as a truck driver or a machine tool operator.
Adding to the confusion are public statements made by Attorney General Jeff Sessions declaring that marijuana prohibitions in existing federal law supersede all pro-marijuana state laws.
It is true that marijuana still remains an illegal Schedule I substance under the federal Controlled Substances Act, and is still subject to prosecution. This may help employers in states like California who wish to maintain a zero-tolerance policy for their workforces.
“California law does not affect an employer’s ability to enact and enforce workplace restrictions related to drug possession, use, impairment and testing,” claims Michael C. Griffaton, attorney with the law firm of Vorys Sater Seymour and Pease.
The new law in California that recently legalized recreational marijuana use explicitly states it does not affect the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace.
An employer also can ban the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana anywhere in the workplace. In addition, the new California law allows employers to prohibit the use of marijuana by employees and job applicants, and to choose to comply with all existing state or federal laws.
The California Supreme Court previously held that an employer lawfully may enforce drug-free workplace policies even if an employee is prescribed marijuana for medical purposes.
In mid-February a bill was introduced in the California State Assembly that would wipe out this option for employers. It would ban employers from discriminating against employees “on the basis of his or her status as, or positive drug test for cannabis for a qualified patient or person with an identification card.” The bill also would add medicinal marijuana patients to the list of protected classes under the state’s anti-discrimination statute.
California isn’t the first state to head in this direction As of Feb. 1, Maine’s recreational marijuana law prohibits taking action against employees for off-premises marijuana use.
“Given the potential for confusion, employers should remind employees of any drug free workplace policies that extend to marijuana, and inform them that, although recreational marijuana is no longer prohibited under state law, it is still prohibited in the workplace,” says Griffaton.
However, surveys are showing that fewer and fewer employers are choosing to conduct drug tests except where employees are in safety-sensitive positions. A major factor dampening enthusiasm for marijuana drug testing is the tight labor market that is getting even tighter as the economy grows.
Battling Against Opioids
A more serious problem for employers is America’s opioid crisis, which is showing no sign of abating.
One study blames the increase in opioid prescriptions from 1999 to 2015 for about 20% of the decline of male labor force participation. In 2016, nearly half of prime age men not in the labor force were taking pain medication and two-thirds – about two million in all – take prescription pain medicine on a daily basis (AA, 10-31-17, P. 5).
Earlier this month the U.S. Labor Department announced a new initiative that will start out by funding seven to 10 state pilot programs with grants totaling $21 million.
The grants can help provide new skills to workers, including new entrants to the workforce, who have been or are being impacted by the opioid crisis.
The funds also may be used for workforce development in professions that address or prevent problems related to opioids in American communities, such as addiction treatment service providers, pain management and therapy service providers, and mental health treatment specialists.
Secretary of Labor Alexander Acosta announced the program March 21 in Ohio at a treatment center after participating in a roundtable discussion with business leaders and state and local officials.
“Every day, 11 people in Ohio die from complications of opioids,” Acosta observed. “It is clear that we stand a much better chance of defeating the opioid crisis by working together.”
