“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.”