While many people celebrate the push for legalization of marijuana, the reality of marijuana legalization is complicated for employers. Under federal law, marijuana is still considered a Schedule 1 drug, which indicates that regulators consider it to have a high potential for abuse, no agreed-upon medical purpose, and insufficient safety standards for use under medical supervision. As a result, even in states where both medical and recreational use of marijuana has been legalized, employers’ legal responsibility to ensure a safe workplace puts all companies in complicated legal positions.
For those industries that involve more physically dangerous work, such as the construction industry, the problem is especially acute, as the combination of heavy machinery and high rates of drug abuse make for a potentially toxic mix. A study conducted from 2008 to 2012 by the Substance Abuse and Mental Health Administration (SAMHSA) found that construction workers were:
- Second highest in prevalence of substance abuse disorder over the past year, at 14.3%
- Fifth highest in terms of illicit drug use over the past month at 11.6%; and
- Represented one of a few industries where the rate of illicit drug use over the past month had increased versus a similar study conducted from 2003 to 2007.
To put the issue in its proper context, it’s worth keeping in mind that construction accounted for 21.4% of the fatalities in private industry in 2015 – that’s one in five deaths from one industry. Given these statistics and the prevalence of drug abuse in construction, here are a few things to keep in mind when considering how to manage the risk marijuana use poses to your company.
Even where legal, state laws and regulations surrounding its use are complex
Legalization of marijuana has not taken place in any kind of uniform or consistent manner whatsoever – it’s been a real hodgepodge of experimentation at the state level. While only eight states have fully legalized recreational marijuana use, another 18 have legalized medical marijuana use and many more have relaxed penalties.
Since 1998, 39 states have passed 66 separate laws or amendments that reduce penalties, allow medical use, or fully legalize marijuana. Wherever your company operates, it’s worth being up-to-date with federal, state, and local laws and regulations regarding marijuana. The legal grounds for this safety concern are constantly shifting under your feet.
Legalization does not remove a company’s obligation to provide a safe workplace
All contractors will be familiar with the U.S. Department of Labor’s Occupational Health and Safety Administration (OSHA). OSHA was created by the Occupational Safety and Health Act of 1970, which gave OSHA the power to regulate workplace safety throughout the United States and its territories (yes, U.S. federal laws still apply in Puerto Rico, Guam, the Northern Mariana Islands, American Samoa, and quite a few others). Section 5 of the 1970 Act consists of what’s called the “general duty clause,” which states that employers are responsible for providing “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Recognized hazards are defined as conditions that are “(a) of a common knowledge or general recognition in the particular industry in which it occurred, and (b) detectable.” Many experts have postulated that the obligations of the general duty clause clearly apply to drug testing employees and this argument was made quite cogently in the April 2015 edition of the Journal of Occupational and Environmental Medicine.
Employers can still test for drug use under federal law
While current interpretations of the general duty clause do not require drug testing in the construction industry, federal law does not prevent employers from drug testing either. The Americans With Disabilities Act (ADA) has put limits on the use of drug testing and employers’ abilities to refuse employment for the use of drugs.
The ADA defines those with histories of addiction that present serious impairments to their ability to perform one or more life activities as covered under ADA protection, and therefore employers must ensure that disqualification of employees for drug use must be consistent with job requirements and/or the safety of said employees and others. In short, in a workplace environment with as many dangers as the typical construction site, drug testing is absolutely an option for employers.
If your employees operate heavy machinery, use power tools, hand tools, or work in dangerous environments, consider employee drug testing for a safer workplace. One study of the construction industry by Cornell University found that companies that implemented drug testing experienced a 51% drop in workplace injuries in the following two years. Those kinds of results are reason enough!
After seeing firsthand the effects of employee drug use, David Bell worked his way into the industry and up to his current role as CEO of USA Mobile Drug Testing, so that he could help employers ensure a safer and more productive workplace. Today he writes extensively on compliance and speaks at industry events to help educate employers.