Reefer Madness: The Thorniest Labor Issue Of The Decade

© AdobeStock
Marijuana is legal. And it isn’t. Confused? You’re not alone. Welcome to the thorniest labor issue of the decade.

“I don’t feel loosening hiring standards is the answer,” says Marc Braun, president of Cambridge Engineering. He’s also navigating the opioid epidemic, which has ravaged the labor market across the country. “[That] is a larger problem and a bigger challenge than legalization of marijuana, but the legalization of marijuana surfaces that and creates even more urgency around it.”

It also creates agita for CEOs who are trying to keep their workplaces safe. In a factory with potentially lethal machinery, drug testing keeps a lid on accidents—and lawsuits. “I am a chemical engineer by training and for the first 20 years of my career I had random drug testing,” he says. “I believe it allowed for me to have someone else holding me accountable, and I viewed it as a helpful element to me. So we’re looking at all the policies and how to be supportive, rather than punitive.”

In cases where a position is not safety sensitive, some employers are choosing to, as quietly as possible, make exceptions to their own rules in order to hold on to their most valuable people. Stanley Jutkowitz, senior counsel for employment law firm Seyfarth Shaw, recounts a recent call from a client describing just such a dilemma. “They said, ‘We’ve got a problem. One of our star employees just tested positive, he or she was not under the influence and we don’t want to lose that person. Do we have to fire them?’” The position was not safety sensitive. Ultimately, the CEO chose to keep the employee.

But cherry-picking when to follow policy can put a company on shaky ground. “You can change how you administer your policy, but you really have to be mindful of being consistent in that approach, so you don’t attract discrimination claims,” says Don Lawless, labor and employment partner in Barnes & Thornburg’s Grand Rapids office.

One of the key challenges for CEOs and their CHROs trying to decide whether to continue testing is that detection for marijuana-related impairment is an imperfect science. “When employers start looking at whether someone is under the influence, there are no hard and fast standards as to what the heck that means,” says Jutkowitz.

“That to me is the critical issue,” adds Russo. Say, for example, a forklift operator you’ve hired tells you he has a medical marijuana card. He says he will never use it at work, only at home. “And he tells you, ‘I can still come in and drive the forklift.’ A lot of employers struggle with that because how do you really know?”

The Trouble with Testing

While conventional wisdom has been that despite the presence of THC in hair and urine samples, impairment is short-lived, other, newer studies indicate that marijuana use impairs beyond the intoxication window, says Todd Simo, M.D., chief medical officer for HireRight. “People say, ‘I’m no longer intoxicated, no longer acting funny,’ but when they try to do psychomotor skills or some complex functions like running machinery or driving, they are still impaired.” In fact, there are conflicting reports as to whether high levels of THC in the bloodstream even correlate with high levels of impairment—or if it’s just the opposite.

This uncertainty is not just a problem for employers. Law enforcement agencies struggle to assess impairment levels in drivers. In advance of the much-anticipated legalization of marijuana across Canada, a report co-produced by the European Monitoring Centre for Drugs and Drug Addiction and the Canadian Centre on Substance Use and Addiction found the percentage of Canadian drivers fatally injured in vehicle crashes who tested positive for drugs (40 percent), now exceeds that of drivers testing positive for alcohol (33 percent). And, unlike breath alcohol detection tests, which are cheap, reliable and easily administered roadside, a breathalyzer for cannabis does not yet exist.

Simo says oral tests can narrow the usage window to within a day or so, but still can’t assess level of impairment. “Everyone is struggling with [defining] the level of acute intoxication,” says Simo. “That’s all been figured out for alcohol, but with marijuana, it’s still virgin territory.”

The issue puts employers in an almost impossible position. “I can’t stress enough how much we need technologies that are able to tell whether or not someone is impaired. It’s the missing piece,” says Braun.

But a breathalyzer-equivalent commercial product will take time, leaving companies to grapple with this on their own. “And there are risks in all of it,” says Michelle Lee Flores, a national labor lawyer with the law firm Akerman who works with California companies responding to legalization. “[Legalization] is putting employers in the position of, ‘I have to do something and I feel like I’m going to be damned if I do and damned if I don’t.’ Every road that’s an option feels like there is a risk involved.”

Read more: If You Were Elon Musk, You’d Drink Whiskey And Smoke Pot Too


  • Get the CEO Briefing

    Sign up today to get weekly access to the latest issues affecting CEOs in every industry
  • upcoming events


    Strategic Planning Workshop

    1:00 - 5:00 pm

    Over 70% of Executives Surveyed Agree: Many Strategic Planning Efforts Lack Systematic Approach Tips for Enhancing Your Strategic Planning Process

    Executives expressed frustration with their current strategic planning process. Issues include:

    1. Lack of systematic approach (70%)
    2. Laundry lists without prioritization (68%)
    3. Decisions based on personalities rather than facts and information (65%)


    Steve Rutan and Denise Harrison have put together an afternoon workshop that will provide the tools you need to address these concerns.  They have worked with hundreds of executives to develop a systematic approach that will enable your team to make better decisions during strategic planning.  Steve and Denise will walk you through exercises for prioritizing your lists and steps that will reset and reinvigorate your process.  This will be a hands-on workshop that will enable you to think about your business as you use the tools that are being presented.  If you are ready for a Strategic Planning tune-up, select this workshop in your registration form.  The additional fee of $695 will be added to your total.

    To sign up, select this option in your registration form. Additional fee of $695 will be added to your total.

    New York, NY: ​​​Chief Executive's Corporate Citizenship Awards 2017

    Women in Leadership Seminar and Peer Discussion

    2:00 - 5:00 pm

    Female leaders face the same issues all leaders do, but they often face additional challenges too. In this peer session, we will facilitate a discussion of best practices and how to overcome common barriers to help women leaders be more effective within and outside their organizations. 

    Limited space available.

    To sign up, select this option in your registration form. Additional fee of $495 will be added to your total.

    Golf Outing

    10:30 - 5:00 pm
    General’s Retreat at Hermitage Golf Course
    Sponsored by UBS

    General’s Retreat, built in 1986 with architect Gary Roger Baird, has been voted the “Best Golf Course in Nashville” and is a “must play” when visiting the Nashville, Tennessee area. With the beautiful setting along the Cumberland River, golfers of all capabilities will thoroughly enjoy the golf, scenery and hospitality.

    The golf outing fee includes transportation to and from the hotel, greens/cart fees, use of practice facilities, and boxed lunch. The bus will leave the hotel at 10:30 am for a noon shotgun start and return to the hotel after the cocktail reception following the completion of the round.

    To sign up, select this option in your registration form. Additional fee of $295 will be added to your total.