By Shari Lane
It is important to understand the gravity of the situation facing Oregon and Washington employers, and to refrain from lighting up—er—making light of the problem. This article attempts to weed out frivolous comments, blow through the smoke screen of confusion, and hash out the options.
Okay, we’re done being silly now.
Washington’s recreational marijuana law is already in effect, and Oregon’s new law goes into effect on July 15, 2015. Both Oregon and Washington law clearly state that employers may legitimately continue to have a zero tolerance policy regarding marijuana. That is, your policy can validly assert that any positive test result for any amount of marijuana, whether prescribed for medical reasons or used recreationally, will automatically result in a no-hire or fire decision.
As an aside, even before the new recreational laws went into effect, such a policy was not always advisable, except for safety-sensitive positions, for two reasons: (1) a zero tolerance policy does not eliminate an employer’s obligation to enter into an interactive process with an applicant or employee about other potential accommodations for a disabling condition, and (2) a zero tolerance policy does not allow an employer the discretion to implement some lesser discipline, short of termination, or offer a last chance agreement, which is sometimes desirable if you have a long term and otherwise valuable employee.
Which brings up the crux of the problem: you can simply refuse to hire and fire anyone who tests positive for any amount of marijuana, but do you really want to? Consider:
- Marijuana stays in the system in detectable levels for up to thirty days. (By comparison, most other drugs only stay in the system for one to five days). There is no evidence that a person who uses marijuana remains impaired during that entire time.
- Once recreational marijuana is fully legal in both Oregon and Washington (at least under state law), more employees are likely to use marijuana off duty. Are you prepared to terminate a significant number of employees, many of whom may be valuable assets to your business, based on the mere presence of marijuana in the system, with no evidence of impairment?
- Would you impose the same criteria for alcohol? That is, would you institute a no-hire/fire policy for the presence of any alcohol in the system, no matter how small the amount, regardless of whether the employee is actually impaired or fit for duty?
- According to Lee Briney-Terry of Legacy MetroLab, current occupational screening tests do not normally account for second-hand smoke exposure. That means as more people smoke recreationally, more people who are not actually using marijuana will have what amounts to false positive drug tests.
To be clear, we are not advocating for “tolerance,” only that you explore all the options and make sure your policies fit the specific needs of your business.
Most employers are already comfortable with the idea that you may (and should) discipline an employee who comes to work with signs of impairment, if s/he then fails a drug test. Some employers plan to adopt a similar approach to recreational marijuana use: if there is an odor, red eyes, and other signs of impairment, and an employee tests positive, discipline will result. (Also known as the “If it walks like a duck and quacks like a duck, it’s probably a duck” theory of drug testing).
On the other hand, one of the reasons employers may choose to stick with a zero tolerance policy is that there is substantial disagreement about how to define and detect “impairment.”
Washington’s law states that a driver is guilty of driving under the influence if he or she is driving with detectable levels of THC in the blood above 5 ng/ml, but that standard has been the subject of much debate, and in any event most employees would not consent to a blood test.
Current urinalysis tests generally report only the presence or absence of marijuana, and don’t indicate the amount of marijuana in the system. According to John Greiner, Operations Manager of ARCPoint Labs, the labs have that capability, however they have refrained from including that information in the reports because “quantifying the levels as to how much effect they have on the individual is difficult because of varying factors such as size of the individual, metabolism, length of usage time, etc.” On the other hand, Greiner commented that there is a new hair test that can detect environmental exposure in children, and can show whether there has been repeated exposure. That test is currently being used in custody disputes, and might at some point be a useful tool for employers.
Ultimately, it is difficult to predict how the new recreational marijuana laws will intersect with the workplace. For now, employers may adopt a wait and see attitude, but we are encouraging clients to discuss their options with a drug testing lab, evaluate the issues with supervisors, and clearly communicate any policy changes to employees.
For assistance in reviewing or developing workplace policies, feel free to contact one of our Labor & Employment attorneys at 503.242.0000.
For more technical background on drug testing and drug test results, you may want to review this Wikipedia article: //en.wikipedia.org/wiki/Cannabis_drug_testing. (HLGR cannot speak to the accuracy of a Wikipedia article, and this link is provided only as another potential source of information).
Also, employers have many resources, but I want to take a moment to thank two local labs for their help in putting this article together:
- Lee Briney-Terry of Legacy MetroLab
Legacy Toxicology Occupational Drug Testing Services
Client Services: 503-413-5295 or 1-800-950-5295