These days, monitoring and responding to cannabis news is a full-time job.
While the risks associated with any type of worker impairment are real and significant, safety professionals are often required to balance concerns about legalized cannabis with other responsibilities that may seem more urgent — and easier to manage.
“Absent federal legislation, which would largely harmonize worker protections and clarify employer rights under ADA [Americans With Disabilities Act] case law, we have a crazy quilt of state medical cannabis laws,” says Adele Abrams, Esq., CMSP, president of the Law Office of Adele Abrams PC. “It’s easy to get it wrong.”
Why Do Current Cannabis Laws Present a Challenge for Safety Professionals?
Washington, DC, and 33 states have medical cannabis laws.
Because these laws are all different, organizations must conduct site-specific workplace assessments of the legal protections for employees and job applicants, as well as the restrictions on when and how drug testing can occur. Safety professionals are expected to understand how state laws may provide different coverage than regulations at the federal level.
For instance, the federal ADA does not protect medical cannabis users, but some state disability protection laws have been applied in concert with medical cannabis regulations to provide these protections, says Abrams.
Many companies operate in multiple states or countries.
Do you work for an organization with job sites in six or more states, or even a multinational corporation? You can expect even greater complexity and a longer timeline for assessing your cannabis-related programs and procedures.
“You have to watch constant changes locally, too,” Abrams continues, citing recent laws in New York City barring some drug testing. “I’m working with several companies now to help them overhaul their legacy programs that simply bar ‘illegal drug use’ because those programs get companies sued.”
THC tests can’t tell the difference between legal and illegal.
Cannabidiol (CBD) products — commonly used to treat medical conditions such as migraines or muscle spasms — are legal across the U.S. Since CBD products can contain up to 0.3% tetrahydrocannabinol (THC), the psychoactive compound in cannabis, they may produce positive results on a drug test. This is despite the fact that CBD products are not known to impair workers on the job.
“Cutting a patient off CBD while allowing prescription opiates is an outcome that employers may want to think long and hard about before requiring people to stop using CBD or medical cannabis as a condition of employment,” says Abrams.
What Are the Best Ways to Keep Up With Changing Cannabis Legislation?
Use trusted online resources to your advantage.
Best practices for addressing cannabis use in the workplace are changing all the time, so it’s best to keep an eye on reliable digital publications and websites that can provide real-time information. As a general rule, you may want to stick with websites that have .gov or .org domains, and visit them weekly.
We recommend regular visits to the U.S. Food and Drug Administration’s page on cannabis, which includes the date it was last updated. You’ll also want to select a go-to local government resource online, such as Chicago’s Cannabis Information Center.
“I watch legal list serves in the employment and HR area, and I keep up with the National Cannabis Bar Association,” says Abrams.
Talk to safety professionals in the same boat.
If you’re having trouble adapting to new perceptions and laws surrounding cannabis, you can take comfort in the fact that you’re not alone. Thousands of other safety professionals are thinking about the same issues within their organizations and working to find effective solutions. Abrams believes that making connections with others going through the same process can provide insights you won’t find anywhere else.
“Network, mentor and seek the support of your peers,” she says. “As a senior professional with 35 years in the safety field, I love to help those starting out, but I also feel like I learn something new every day.”
Leave the more specialized work to the experts.
This advice may be a no-brainer for safety professionals working for large organizations. But if you’re the only safety person around, asking for the support of an attorney or qualified consultant might seem a bit more daunting. Wondering how to make the business case for a lawyer? Show your employer the money they could save by reducing their risk of liability.
“Get help from people who may have solutions available, just as you’d consult on safety or health issues outside your wheelhouse,” says Abrams. “This can be a pretty specialized area, and no safety professional has time to monitor a lot of cannabis sources.”
How Can You Create an Effective Program Addressing Cannabis?
Retire outdated controls and consider a fitness-for-work program.
The key to creating a modern program that helps your organization address substance abuse in the workplace is to focus on impairment and fitness for duty, according to Abrams. These programs consider factors such as fatigue and stress in addition to drugs and alcohol. Historically, workplace drug policies focused on detecting an individual’s cannabis use over approximately 30 days, rather than their ability to do their job safely in the present.
“A fitness-for-duty program is preferable for capturing all causes of impairment from full safe functionality,” she adds. “When a worker is pulled aside due to a reasonable suspicion that something is wrong, all factors should be considered — not just substance abuse.”
Reexamine your cannabis-related programs monthly.
A monthly revision cycle for your fitness-for-work program may seem unnecessary. However, if you want to implement the most effective controls, the pace of legislative change surrounding cannabis makes it a practical action. Abrams says she advises clients of changes in their local and state cannabis laws every few weeks to help them mitigate risks.
“Just in Maryland, where I’m based and we have medical cannabis, our state legislature considered 40 different cannabis-related bills in 2019.”
Avoid contradictory messages that disadvantage workers.
When employers implement zero-tolerance drug and alcohol programs without understanding their obligation under certain medical cannabis laws, it can present unwanted complications. For example, according to Abrams, some states require organizations to reimburse employees for medical cannabis if it is being used to treat a workers’ compensation injury in lieu of opiates.
“Employers pay for the cannabis but could then fire the worker upon returning for testing positive due to residual THC in their system,” she says. “These types of laws are a game-changer.”
Want to connect with experts who can help you make sense of our country’s crazy quilt of cannabis laws? Join us and more than 5,000 of your peers at Safety 2020.
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