[00:12] DMEC: Welcome to Absence Management Perspectives: A DMEC Podcast. The Disability Management Employer Coalition, or DMEC, as we're known by most people, provides focused education, knowledge and networking opportunities for absence and disability management professionals. DMEC has become a leading voice in the industry and represents more than 160 professionals from organizations of all sizes across the United States and Canada. This podcast series will focus on industry perspectives and provide the opportunity to delve more deeply into issues that affect DMEC members and the community as a whole. We're thrilled to have you with us and hope you will visit us at www.dmec.org to get a full picture of what we have to offer, from webinars and publications to conferences, certifications, and much more. Let's get started and meet the people behind the processes.

Heather Grimshaw: Hello, and welcome to Absence Management Perspectives: A DMEC Podcast. I'm Heather Grimshaw, communications manager for DMEC. I'm here today with Terri Rhodes, CEO for DMEC, to showcase Terri's Trends article series, and today we'll be talking about legalized marijuana use and its effects on employers. Terri has more than 30 years of experience in the absence management industry, and she is going to facilitate the conversation about marijuana drug testing with Kathryn Russo, an attorney and principal with Jackson Lewis, P.C., who wrote an article about this topic in the Integrated Absence Management issue of @Work magazine. We've unlocked the article “Navigating Legalized Marijuana in the Workplace” for podcast listeners and included a link to it in the notes section of this podcast. We've asked Kathryn to elaborate on some of these issues in her discussion with Carrie today, which dovetails with Carrie's article about the issues employers face when it comes to marijuana testing and her latest Trends article. We included a link to this Trends article in the Notes section as well for ease of access. Terri, I'm going to hand things over to you to get us started.

[02:13] Terri Rhodes: Thank you, Heather, and thank you, Kathryn, for joining me today. I was thinking about this as I was preparing for this podcast, and I've been trending various issues around marijuana in the workplace for probably about ten years. And 10 years ago, we could all just rely on our drug testing policies and zero tolerance and call it a day. But things are very different today, and that's what we're going to talk about, I think. Kathryn, the first question I'd like to talk to you about or get your feedback on is do you see more employers moving away from pre-employment and random and reasonable cause drug screening for marijuana? And I included both of those because I think there might be a little bit of difference there, but maybe you could just talk to us about that.

[03:25] Kathryn Russo: Sure. Thank you, Terri. I'm happy to be here today, and I do agree that I'm seeing a trend among employers nationwide to move away from testing for marijuana, especially on preemployment testing, and I'll talk about the other types of testing in a moment. But I think one of the reasons pre-employment marijuana testing is particularly troublesome is because the person hasn't been hired yet, right? So they've never been on duty or on company premises. And we're now starting to see a number of states enacting laws that protect off duty use of marijuana. So we've got a couple of states and a city that actually prohibit preemployment marijuana testing outright. And in addition, there are some additional states that are protecting all off-duty use of marijuana, whether it's medical or recreational. And the reason that's significant is drug test can't tell you exactly when or where the person used marijuana. So if you're doing pre-employment testing, of course the person was off duty and off premises because you haven't hired them yet. So that means under these states that protect off duty use, there's no point in doing a pre-employment test because it's only going to capture off duty use. So combine those laws with the fact that we've got a very tight labor market. Employers are desperate to hire people. I've been hearing from lots of clients all over the country that they can't hire people because they get a good candidate, that they like, they get through most of the pre-employment processes and then they flunk the drug test because of marijuana. So out of that frustration, I think many employers are saying, there's no point to it, let's just take it off of our drug testing panel. We'll still test for all the other drugs pre-employment, but it doesn't really help us if we want to recruit applicants. So many employers are taking it off the pre-employment drug screen. And I agree with you. Ten years ago, this was kind of unthinkable, right? Marijuana was considered one of the drugs that everybody tested for and there was no thought given to what if they test positive. And now it's a totally different view, really. And I've even started to come around to the view that testing positive for marijuana on a pre-employment drug test isn't terribly useful, especially if it's in a state where it's legal, right? It's almost like testing positive for alcohol. And again, alcohol is a legal substance. If somebody tests positive or alcohol on a preemployment test, it just means maybe they didn't have a lot of common sense, but they didn't violate the law, they didn't do anything wrong. It doesn't mean that they're an addict or an alcoholic, and it really doesn't show that they're going to be a bad employee. So I think that employers are really starting to come around to the view that for pre-employment purposes, we're just going to stick to the other drugs like cocaine and heroin and those, and just leave marijuana out of it and then keep it in where we think it's appropriate and where it's legal for tests like reasonable suspicion, post-accident, maybe random. Random is also problematic because you don't have a suspicion that anybody did anything wrong, right. You're just pulling names randomly, which means you're likely to capture somebody's off duty use of marijuana. So the other trend I'm starting to see is employers removing marijuana from the panel, even for random tests. Now, when you get to reasonable suspicion that you asked me about, and even post-accident, it's a little bit tricky, right? So reasonable suspicion I think I would be okay with if the state law allows it. And again, the states vary tremendously. You've got New York State that doesn't allow any testing for marijuana under any circumstance whatsoever. But if the state law allows it, I'm okay with testing for marijuana because the idea of reasonable suspicion is that people can't be impaired at work, right? So we're theoretically trying to figure out if people were impaired at work based on their appearance, behavior, speech, et cetera. Post-accident, I think, is a little bit trickier because, again, since marijuana test doesn't tell you whether the person was currently impaired at the time of the accident, it may have limited usefulness for a post-accident test. So I think that's a struggle for employers when deciding whether or not to test for marijuana on post-accidents.

[08:19] Terri Rhodes: Thank you, Kathryn. This is a very complicated issue, and I think where employers are grappling with this is they have these zero tolerance policies that they're required to have if they're getting some kind of federal reimbursement or they're a federal contractor. And so how are employers working through this where they have these zero tolerance policies?

[08:51] Kathryn Russo: Well, one thing employees still can do in all states is you can prohibit use of marijuana at work and being impaired at work. And that's true in all 50 states. The federal contractor issue, I think, confuses people. So let me speak to that for a moment. So there is a law called the Federal Drug Free Workplace Act that applies to federal contractors and grantees, but that law doesn't require any drug testing, and it also doesn't allow employers to regulate what people do when they're off duty. So the law just says if you have a federal contract or a federal grant, then you have to make sure that your employees are not using illegal drugs at work. And that's all that it says. It's not much more detailed than that. So I don't think it's really a good defense anymore for employers to say, I'm a federal contractor, so I have to follow federal law. And federal law says marijuana is illegal, so that's going to be my rule. It really doesn't work like that. And some of the courts are rejecting that defense for what I just said, which is that the law doesn't require drug testing and the law doesn't allow employers to regulate off duty use. And as I said earlier, we have all these laws now that protect off duty use or they protect medical marijuana use. And the courts are starting to enforce those state laws. The other thing that the courts are saying is that, you know what, even though marijuana may technically still be illegal at the federal level, the federal government is not enforcing that law. For at least a decade now, the federal government has backed off of interfering with any state marijuana laws. Congress blocks the Department of justice from using any federal funds to interfere with state medical marijuana laws. So, in effect, Congress has been taking actions to allow the states to enact their own medical and recreational marijuana laws, and the courts are now enforcing those laws. So even though technically we don't have a federal law that's legalized marijuana yet, it's almost like we do, because Congress is not doing anything to stop the state laws. Now to just to go back to the federal contractor issue for a moment, I think that one thing employers can do if they're a federal contractor is check the language of their federal contracts. So, for example, I've worked with a few employers who insisted that we have to test for marijuana. We can't allow marijuana because we have a federal contract. So I said, okay, well, let me see it. Let's look at the federal contract. What does it actually say? And very often they're silent. They don't say anything about drug testing, they don't say anything about marijuana. If that's the case, my view is I think you're probably going to have to comply with state marijuana laws. However, if you do have a federal contract that says the federal agency expects you employer to do drug testing, including testing for marijuana, and to exclude people who test positive, then I think the employer is in a much better position to say that because we're a federal contractor and our contract has this language, we can't hire people who test positive for marijuana.

[12:22] Terri Rhodes: This is very helpful, Kathryn, in terms of how employers can delineate these two particular issues, because I do think that there's a lot of confusion and you broke it down perfectly for us. In an article that you recently wrote for our At Work magazine that was published last month in July, you talked about the limitations of the testing that is done for marijuana. You talked a little bit about that previously, but specifically we've talked about this, that marijuana stays in the bloodstream for sometimes 30 days or more, and that the test in and of itself does not distinguish like a blood alcohol test, whether someone is impaired. And so where we have employers that in their particular state recreational marijuana is passed. Do you have any recommendations for I know you've talked about this and I think you've said it. But I just want to say it. Probably had to say it again for those who are testing. Since there really isn't a reliable test that can be used if an employer is testing for drug use specifically in whatever way fitness for duty. Post-accident preemployment. Which I think you were very clear on preemployment. So I hope everybody heard that message. But given that there are these limitations with the drug test itself, what is your recommendation specifically?

[14:13] Kathryn Russo: Yeah, I agree with you. It's very difficult with reasonable suspicion because as I said earlier, the notion of reasonable suspicion is that employees can't be impaired at work. And so when an employer does have a suspicion, they want to be able to test employees for drugs or alcohol, and if they test positive, presumably the consequence will be termination or other disciplinary action. And since we don't have a marijuana test at the moment that can detect current impairment, it's very frustrating and difficult for employers. So what I've been saying to employers, especially in states, assuming they're allowed to test for marijuana, and I think that's the threshold issue that an employer needs to figure out is, am I even allowed? Because in New York you can't test at all for marijuana, and in New Jersey, to give another example, you theoretically still can test for reasonable suspicion, but we're waiting for some regulatory guidance to come out that will require employers to have a trained workplace impairment recognition expert to help them detect impairment before testing somebody. But putting that aside, in general, if there's a concern that there's recreational marijuana in that state, and if off duty uses protected, I really am cautioning employers about testing at all. But if you do go ahead and test, if you get a positive result, I would probably advise the employer that if you're going to take disciplinary action, focus more on the person's behaviors rather than just that positive test result. And the reason for that is that, you know, the employee is going to come back and say, oh, yeah, I tested positive, but that's because I used it last week or over the weekend or three weeks ago. So you can't fire me for claiming that I was impaired today, because I wasn't. So I think in those circumstances, the test may or may not be useful. I think sometimes it may still be useful to kind of confirm your suspicion. But then I'm recommending to employers that you may want to base your disciplinary action on whatever it was that you observed about the person. For example, their speech was slurred, their eyes were bloodshot, they were incoherent. When you spoke to them, they fell asleep at their desk. If you can document all of those things, I think that will help you tremendously when you take your disciplinary action.

[16:50] Terri Rhodes: For sure. And I think on the other side of this, you have those employers who are going to say, oh, this is a liability issue if we don't test for marijuana, and we only test for the other drugs and they're impaired from marijuana. What about safety issues? For example, patients in the hospital or an employee accident caused by an impaired employee? So how do we talk to those employers who think that they need to have a qualified test for marijuana in order to address those issues.

[17:31] Kathryn Russo: I agree. Again, that issue is very difficult and concerning for employers who are in safety sensitive industries. You know, health care, manufacturing, construction, any workplace where you've got people doing dangerous work, it's a big concern. And many employers are just so reluctant to take marijuana off of their drug testing panel for just those liability issues that you mentioned. This may not sound like a good explanation, but one thing I will say to employers is there's really no requirement to test for marijuana unless you are a federally regulated employer. Like a dot covered employer, certain federally regulated employees must be drug tested, including for marijuana. But the vast majority of employees don't have to be drug tested at all, let alone for marijuana. So that may not make an employer feel good because they may be saying, yeah, but what about the patient care issues? What about the danger of workplace accidents? And I get that, but certainly because of the laws that are coming out and the protections for marijuana users, it's a tough one for employers. And I think you have to sort of juggle how are we going to balance the prohibitions and the protections on marijuana use versus safety in our workplace? What I've been advising a lot of employers is doing more safety trainings that include reasonable suspicion detection for supervisors. I prepare a lot of drug testing policies for employers, and I find that they like to have reasonable suspicion in their policy, but then nobody reads the policy and their supervisors don't really know how to enforce it. So I've really been recommending to many employers now that you've got to do some training, especially in light of all these marijuana laws, you want your supervisors and managers to be able to detect some signs of impairment and to take some action. Even if you can't test, even here in New York, where I am, you can't test for marijuana, but you can train your supervisors to detect some behaviors that may indicate unsafe behavior in your workplace. And at a minimum, you can remove that employee, have a conversation with them while you figure out what you're going to do. But I agree, it's really a very difficult thing when an employer can't test for marijuana anymore. But on the flip side, there are so many other drugs out there, and I've said this to employers for years, which is that you can't possibly test for every drug that's out there. So, yes, it would be good to test for marijuana because it's so prevalent, it's so widespread now, so many people are using it. But there are also lots of other drugs, too, that many employers don't test for, and it would be impossible to test for every drug that's out there. So it's almost like you have to pick and choose your battles and try to figure out what can you do to keep the workplace safe, given that there are it's just a fact of life now that there are limitations on testing for marijuana?

[20:56] Terri Rhodes: Absolutely. And the training program is really key. Several years ago, I worked for a large hospital system and I was responsible for the drug testing programs. And we had many supervisors who felt there was some reasonable cause, but they were afraid that if they made a mistake that they would be on bad terms with the employee. And so there was a lot of time that was spent trying to train managers and employees. Like, this is our policy. You're being asked, you're not being accused. We're trying to make sure we have a safe workforce and that we're keeping our patients safe. But it was very tricky during that time, and I don't think it's changed much because supervisor training is one of those things that doesn't occur as much as it should in many HR activities, as I'm sure you're aware. Kathryn so as we were talking about some of these safety issues, and I think I read an article recently, and I don't remember where it was because I read so many, but they were saying that maybe it was an auto insurance company. They were saying that automobile accidents have increased since marijuana has been legalized in many states. And they were attributing those accidents to the use of marijuana, which I thought was interesting because I'm like, well, how did they do that? It's not like they could run a blood alcohol test. And most of the time when people are in accidents, they're not being tested for drugs. Maybe they might, but have you seen anything in your practice where this is actually true, that we've seen an increase in safety issues or accidents?

[23:05] Kathryn Russo: Yeah, I don't really have any strong data to answer your question. I really just have anecdotal information on what I'm hearing from employers. And surprisingly, I have not had many clients complain to me that they're seeing an increase in accidents now that marijuana is being legalized. The main thing that I'm hearing is we're getting loads of positive test results for pre-employment. I'm not really hearing a lot that we're getting more positive post-accident tests, which is surprising to me because I would agree with you that I would assume or imagine that there should be an increase in accidents, given that there's so much legalized marijuana happening now. As I said earlier, it's now going to be like alcohol, right. And drunk driving is still a very huge problem that we're all living with. So to me, it seems like driving under the influence of marijuana is now going to become a big issue. But I don't really have any data to answer that question. So I imagine we will see it now in the future. Now that especially in the last three or four years, we've had more and more and more of these laws being enacted. So I think we're going to start to see that.

[24:30] Terri Rhodes: So I think the last question I'd like to ask you, Kathryn, and again, this is something that's evolving and it's changed over the last few years, are those underlying disability issues where somebody had a medical marijuana card? And this was mostly, I think, prior to the legalization that's been happening across the country, where an employee had a medical marijuana card. And I think employers took adverse reaction and those lawsuits at that time were not successful. I think that's different today in terms of not just the medical marijuana card, because I don't seem to be even hearing that where it's legalized. Nobody is playing there, I've got my medical marijuana card instead, it's legal. So it's a completely different argument. But are you seeing the same thing, or are there things that employers need to be paying particular attention to on these underlying disability? Either maybe a workers compensation claim or an Ada case or even bringing somebody back to work?

[25:54] Kathryn Russo: Yes, and I think it's a really good issue that you raise, Terri. So I agree with you. The first thing is in states that have both medical and recreational marijuana, I agree with you that the medical almost not entirely, but it almost becomes irrelevant, right, because a person can say, yeah, I have a medical marijuana card, but it's legal for anybody to use it. So what difference does it make if I have a medical marijuana card? So I think it makes the medical issue a little bit more irrelevant in those states. But there are still plenty of other states that have medical marijuana laws, but no recreational marijuana laws. So that means when the employer is analyzing what to do, they want to look at, does this person have a valid medical marijuana card? Because if they don't, then technically in that state, it's illegal drug use. But I also warn clients that if you're in a state, even if the state doesn't have employment protections for medical marijuana users, you still should tread very carefully when you're making your employment decision. A good example is Florida and Ohio. Those are two states that have medical marijuana laws, and they actually have employer friendly provisions that don't allow employees to sue their employer if the employer takes an adverse action based on the medical marijuana use. So employers in those two states sometimes will think, oh, all right, this is easy. I don't have to hire this person if they use medical marijuana. But the thing that I always caution them about is just look at the facts of the situation, because there's always lurking around there the potential for a disability discrimination claim. So, for example, if the applicant just volunteered, because we would never ask this in an interview, right? But if the person volunteered that, oh, I have this medical condition and my doctor wants me to use medical marijuana, and during their job interview. They just volunteer a whole bunch of information, and then we decide not to hire them. Even if the medical marijuana statute says, hey, you can't sue us because of your medical marijuana use, the person could potentially go around that by saying, well, I told you in the job interview that I have cancer or whatever disability they have. And that's the real reason, employer, why you didn't hire me. So, again, I'm not saying that an employer should always treat a medical marijuana user as protected all the time, but I think you have to look at all the facts and circumstances before you make your hiring decision or employment decision for current employees and see if maybe you can make your decision based on something else. Maybe there was another qualified applicant that you chose to hire, but I think you just have to have your eyes open that a medical marijuana user may, even if they don't have a claim under the medical marijuana statute, they might have a claim just under your generic disability discrimination statute under state law.

[29:09] Terri Rhodes: Thank you so much, Kathryn. I think that this whole issue is just a tangled web of potential legal problems, if not handled appropriately. And I so appreciate having this conversation with you and having to lay this out for us. And I hope that employers are paying attention to the things that we talked about, and that if they have any questions whatsoever about any kind of action that they might take with an employee or a potential employee, that they seek legal counsel first. So thank you so much, Kathryn.

[29:54] Kathryn Russo: Thank you very much. I agree with you. It's very unfortunate for employers that testing for marijuana has become so complicated. But that, honestly, is the advice that I'm giving, is really before making a decision with respect to an employee or applicant who uses marijuana, you really need to know your applicable state law, whether it's medical or recreational, what kind of a job is it, and then you've got to analyze all of the legal risks, and it's not easy. I wish it were easier.

[30:26] DMEC: This is Heather. I just wanted to jump in and thank you both. It's really interesting to hear the back and forth and different nuances and such a complicated environment, as you both have illustrated. So thank you all, and thank you for joining us for this podcast.