Can truckers and those working in safety-sensitive jobs enjoy legal marijuana?
So your state legalized marijuana. What does that mean for you as an employee? Can you be fired for using? How are employers supposed to accept legal marijuana and guarantee safe workplaces?
“Legalized marijuana” – what does that even mean? Legal marijuana, a general term, means different things across different states. And different states have enacted different laws in terms of marijuana use in the workplace. Employees and employers also have different interpretations of what’s legal.
- Employee: “I should be allowed to do whatever I want on my time.”
- Employer: “How do I make sure my workplace is safe and drug-free?”
There are different forms of marijuana and each behaves differently in the body. We need to know the difference and how they affect drug testing.
Let’s clear the smoke and get some clarity on this, shall we?
CBD, THC, Cannabis, Marijuana, Hemp:
What’s the Difference?
First of all, Marijuana and Hemp are two different plants. Marijuana contains more than .3% THC and Hemp contains less than .3% THC. CBD is the oil extracted from each plant most commonly used for medicinal purposes. THC is a cannabidiol metabolite that alter’s the brain causing problems with focus and concentration.
CBD, the most popular, doesn’t have the psychoactive component that makes you high. It’s not a pain reliever, but it alleviates anxiety and inflammation. It’s found in the form of oils and topical creams as well as tinctures for under the tongue, gummies, candies, and even beverages. It has very few side effects, although some report it leads to dry mouth or impacts blood pressure. It can also interfere with certain chemotherapy medications. CBD does not present a problem on a drug test if it is topical or in it’s pure form. Because CBD can come from either the Marijuana or Hemp plant, different CBD products can contain different levels of THC.
THC, the chemical part of the plant, creates the high and impairs the brain. It comes from the flower of the plant and is most commonly smoked. THC may also be found in oils, edibles, tinctures, capsules, etc. It is good to note that any cannabidiol metabolite, not exclusively THC, will result in a positive drug test.
Marijuana contains a higher concentration of THC. Hemp has a higher concentration of CBD. Because neither are federally regulated (and both are federally illegal), it’s important to know how your CBD is extracted and how much THC it contains.
If you’re concerned about a drug test and you must use CBD, you should stick to topical products.
What’s considered legal marijuana?
It depends on the state. California was the first state to legalize medical marijuana use in 1996. Since then, nearly every other state has had to deal with medical marijuana use. As of 2020, only Nebraska maintains that all forms of marijuana are illegal. Although West Virginia passed legislation allowing for medical marijuana use, there are no systems in place to dispense it. The rest have passed various laws on different types of use, with 14 states and the District of Columbia allowing for recreational use.
- WV has a medical program pending
- Legal for Medical Use
- CBD only: AL, GA, ID, IN, IA, KS, KY, MS, NC, OH, OK, SC, TN, TX, VA, WI, WY
- All forms: AR, CT, DE, FL, HI, IL, LA, MD, MN, MO, ND, NH, NM, NY, PA, RI, UT
- Legal for Recreational Use
- AK, AZ, CA, CO, ME, MA, MI, MT, NJ, NV, OR, SD, VT, WA, D.C.
Even “medical use” is a broad term. For some states it’s only for certain conditions, or palliative care, while others make it easy to obtain a medical use card with little to no medical supervision. Because marijuana is still a Schedule 1 drug and federally illegal, doctors can’t prescribe it. They may recommend it in legal states.
Some states protect employees from termination if they carry a medical use marijuana card. Courts and cities have begun siding with employees who are terminated for failing a drug test because of marijuana use.
How do I ensure a drug-free workplace?
So if you, as an employer, want a drug-free workplace and marijuana is legal in your state, what do you do? Before now, drug/alcohol testing was the answer. If a drug test is positive for drugs or alcohol, you follow company protocol. Legalized marijuana makes drug testing more difficult. If an employee tests positive for THC, does that mean the employee was high at the time of the test or over the weekend, days before the test? Can an employee be fired for getting high off the clock?
What should a marijuana work policy include?
It depends on whether or not you own or manage a safety-sensitive company.
Non-DOT Marijuana Policy for businesses not regulated by the Department of Transportaion
If your company does not fall under DOT (Department of Transportation) authority, you have some freedom in drafting your policy. You get to decide what you will and won’t allow. Some more relaxed companies allow for marijuana use even while working. Others have a zero-tolerance policy. However, when people are legally allowed to use marijuana, are you legally allowed to fire them for use?
If you decide on zero-tolerance, you should not tolerate impairment while on the job. Because THC can be detected for several weeks after use, firing an employee with a positive drug test could get you in trouble. Especially if that employee claims they’re using it for medical reasons.
Suggested Best Practices
Treat marijuana impairment as you would alcohol impairment.
If alcohol use is not permitted on the job, neither should marijuana use. However, you should know your state’s laws concerning medical use marijuana.
Learn how to spot signs of impairment and teach your managers.
Lobdock offers Supervisor Reasonable Suspicion Training. Contact us for class details.
Know the differences between drug tests and carefully choose which one you’ll use.
- Urine tests can detect marijuana for about 3-30 days after use, sometimes longer
- Saliva tests can detect it for about 24 hours after use
- Hair tests, the most sensitive, can detect THC for up to 90 days after use. It uses a primary test of enzyme-linked immunosorbent assay (ELISA) to detect positives.
- Blood tests can detect THC for only 3-4 hours
- The new THC Breathalyzer detects use withing 2-3 hours.
Stay on top of developments in testing technology.
Consult with an attorney about how state laws affect you before setting policies and testing rules.
Communicate clearly with your employees about the marijuana-use policy and consequences for positive tests.
Keep solid documentation on work performance. Download our FREE Reasonable Suspicion Confrontation Planner to use if you think an employee is using while at work.
Delegate the burden of managing your drug-testing program. Hire a TPA.
Lobdock helps you write policy, runs your drug testing program and keeps you informed of technology and policy changes.
DOT Marijuana Policy
What do I do if I run a business regulated by the Department of Transportation? That’s easy. You don’t have a choice because you are federally regulated and marijuana is federally illegal. Your safety-sensitive employees – truckers, machinists, pilots, etc. – are prohibited by federal law from using marijuana products. You must be very clear that even if marijuana is legal in your state, your safety sensitive employees are prohibited from using even off the clock!
DOT Positive Drug Test Consequences
Because random drug testing is required for DOT-regulated employees, and because marijuana can be detected for several days or weeks, you absolutely cannot ingest or inhale any kind of marijuana product. A positive drug test could ruin your career.
The FMCSA Clearinghouse that was instituted in January 2020 makes it impossible for anyone to be hired anywhere else if they’ve tested positive for drugs or alcohol without first successfully completing a Substance Abuse Program and producing a negative return to duty test. This is true even for those holding medical marijuana cards or for those whose doctor recommended marijuana products for health reasons.
We realize drug laws are changing rapidly. You have to keep up with the changes in every state where your business is located. Let us help.
Call Lobdock today. We’ll help you establish your drug and alcohol policy, run your testing program and enroll you in the FMCSA Clearinghouse.
Are you prepared to confront an employee you suspect is using drugs or alcohol?
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