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Cannabis in Workplace in Illinois

Employers Are Just Starting To Rethink Cannabis Testing Policies

The single most troubling concern that medical cannabis patients have when they re-enter the workforce is dealing with workplace drug testing. The good news is that many medical cannabis users, previously disabled before entering the program, are now able bodied enough to return to work. Patients often ask about the best way to approach an upcoming drug test. Should they be up-front with their employers, should they abstain from cannabis usage for several weeks so that they test negative or should they just not apply at all? It is a terrible situation for those who desperately need to earn a living but need their cannabis medication to function at their jobs.

There currently seems to be a big shift in attitude when it comes to implementing cannabis testing for new employees. Here are the factors that may be altering the minds of employers to forego drug testing for medical cannabis:

  • Medical marijuana is now legal in 30 states and DC
  • Extent of the countrywide opioid crisis is draining the talent and productivity pool of workers
  • Employers are being persuaded to help rather than penalize applicants struggling with addiction
  • Tight labor market means fewer applicants
  • No widely adopted tests or standards exist regarding the level of THC in the body
  • Difficulty with identifying impairment

James Reidy, an attorney at the New Hampshire law firm of Sheehan Phinney Bass & Green PA, has become an expert on the current attitudes about drug and alcohol testing procedures for employers which are rapidly changing. His observation is that it is now a liability for some workplaces to maintain their zero tolerance policy on drug use, particularly cannabis.

The Society for Human Resource Management (SHRM), one of the largest HR organizations in the country, just recently held its state and national drug law panel at the annual employment and legislative conference. James Reidy was in attendance and he reported a huge swing towards relaxing drug testing procedures, particularly for cannabis. Societal mores regarding cannabis usage are rapidly transforming. At the same time, the federal government is causing confusion for employers by failing to clarify the position of state and federal laws with the rollback of the Cole Memo. Here is the link to an article I wrote explaining the Cole Memo.

CEOs may be forced to abandon their current policy of termination over rehabilitation for drug use due to difficulties with recruiting and retaining highly qualified employees who may be participants in medical cannabis programs. With the extent that the opioid crisis is hitting the American workforce, CEOs abandoning drug testing for offers of treatment programs may make more business sense. Many HR professionals at the SHRM conference admitted that they still required post-accident drug testing, reasonable suspicion testing and random testing. On a national scale, the trend for these practices is definitely in a downward direction.

It is becoming more and more likely that HR managers will be forced to deal with drug problems at their workplace, if they haven’t already. According to the numbers that Reidy shared:

  • 28.6 million people used an illicit drug in the past month which included 24 million cannabis users
  • ¬†Prescription drug abuse affects 71% of American employers

Some attendees at the SHRM Conference shared that they had removed cannabis testing entirely from their drug policies and procedures. They also admitted that while assessing impairment by alcohol is a well-accepted standard, there is no such comparable testing to determine how much THC in the body is acceptable. THC can remain in the system long after its effects are felt. Some states, where recreational cannabis is legal, have already implemented laws around employment rights and protections for cannabis usage. In Maine, employers are prohibited from discriminating against employees who use cannabis outside of work.

Unfortunately, the Americans with Disabilities (ACT) does not protect medical cannabis users at the moment. Insurance carriers will not pay for medical cannabis treatment for those injured on the job while it is still federally illegal. After the 2013 Cole Memo came into play, some courts were forcing insurance companies to pay for medical cannabis treatments via worker’s compensation, since there was such a low risk of prosecution. All of that has changed with the rescission of the Cole Memo.

The opioid crisis has significantly reduced the pool of competent workers as we move closer and closer to full employment. Rather than disqualifying those with an opioid addiction, CEOs should be providing workplace drug use rehabilitation in the form of medical cannabis. This would go a long way to significantly improving communities devastated by high unemployment and lack of growth opportunities.

Source: Leafly.com, Legalization Laws Are Forcing Employers to Rethink Cannabis Policies, Kathryn Moody, March 15, 2018

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