By Kyle Rask, NBIS Concrete Pumping Program Manager
This article was originally published in the March 2021 issue of the ACPA Magazine.
As of April 2022, 37 states have legalized some form of marijuana use. 18 states have legalized recreational marijuana, and 19 more states have legalized marijuana for medicinal use. For employers, this new age of legalization poses two issues: first, a complex system of contradictory local, state, and federal laws to navigate, and second, an increase in employee usage. In the concrete pumping industry, where many employees work in safety-sensitive, federally-regulated positions, marijuana usage is a potential threat to both legality and safety.
At the federal level, marijuana is still an illegal Schedule 1 Controlled Substance. The Department of Transportation (DOT) prohibits medical marijuana use by employees in safety-sensitive positions subject to federal testing guidelines. For workers who hold a Commercial Driver’s License (CDL), the Federal Motor Carrier Safety Administration (FMCSA) makes it explicitly clear that there is no scenario in which marijuana use—medical or otherwise—is allowable.
Data shows that increasing numbers of employees are testing positive for marijuana use, both medicinally and recreationally. Quest Diagnostics, Inc. reported in 2019 that the percentage of positive drug tests increased to its highest level in 16 years, with a significant rise in positive tests for marijuana use.
More federally-regulated employees are testing positive, too. FMCSA’s Drug and Alcohol Clearinghouse reported 40,500 positive tests between January and September 2020, 52% of which were for marijuana.
As marijuana legislation continues to loosen across the country, the likelihood that members of your team will test positive increases. If your state has legalized recreational or medical marijuana, the drug is readily available to your employees. Your staff might be more likely to push back against your drug policy, or take the federal regulations less seriously, when state and federal laws conflict. This could increase your company’s risk of facing fines, violations, and negative impact on your daily operations.
Stick to a Strong Policy
The best way to manage the increased risk is to implement a rock-solid, companywide drug policy that follows federal guidelines. Enforce a no-tolerance policy for all employees—regardless of their position. Consistency is the most important element of a strong and effective drug and alcohol policy. By even-handedly enforcing your company policy, you send a singular message to your entire team. It tells your staff that, above all else, your company values its safety culture—and offers a final-rule style clarification on the issue, eliminating confusion.
Another important aspect is keeping management up-to-date with current local, state, and federal policies. Legal marijuana legislation is a largely uncharted territory. State and local governments are establishing new regulations and legal precedents all the time. You likely already have resources at hand that can help inform your team, including legal and human resources services. Leverage these to bolster your approach.
Testing and monitoring
A lot of companies in states that have legalized marijuana are becoming lax about testing employees. For concrete pumpers, that’s simply not an option. Following federal regulations means that you’re required to regularly screen all employees with a CDL—which likely includes a large portion of your staff. Make it your company policy to always test all employees according to FMCSA guidelines.
Additionally, it’s a good idea to supplement testing with monitoring. Keep your middle-management up-to-date with drug and alcohol Reasonable Suspicion Training. Unlike the more noticeable effects of being under the influence of other drugs such as alcohol, determining whether or not someone is under the influence of marijuana can be difficult unless you know the appropriate signs to look for.
Non-Regulated Employees and Medical Marijuana
Each of the 37 states that have legalized medical marijuana have different protections for employees who use it. This might not affect your federally-regulated employees, but what about your shop hands, dispatchers, and administrative professionals? If they hold a medical marijuana card, you might need to exercise caution.
Consult with an attorney about non-regulated employees carrying medicinal marijuana cards. Currently, no state requires employers to allow medical marijuana use while on the job. However, if a medically-authorized, non-regulated employee tests positive for marijuana use, the wrong disciplinary action could open you to Equal Employment Opportunity Commission claims.
In some states, a positive test for marijuana can affect workers’ compensation. Wisconsin courts recently ruled that workers injured while under the influence can have their workers’ compensation benefits reduced by 15%.
Six states – Connecticut, Maine, Minnesota, New Hampshire, New Jersey, and New Mexico – have ruled that insurance companies must reimburse medical marijuana treatment costs. On the other hand, Massachusetts’ highest court recently ruled that insurance providers are not required to reimburse employees who use medical marijuana for a work-related injury. This would put the insurer in an involuntary risk of federal prosecution, according to the courts.
A well-built, fully-developed and consistently implemented drug use policy can do wonders to protect your company against the pitfalls of the always-changing local, state, and federal marijuana legislation. Stay consistent, firm, and fully aware of what you can do to keep your daily operations safe and to make your safety culture thrive.