Manufacturing Today - July 2017 - 18

B UY AMERICAN

E MPLOYEES

COLUMN BY | STEVE SAWIN

18

drug use. "The Massachusetts law
specifically says that employees are
not allowed to use marijuana on the
job or possess it in the workplace or at
school, for instance," Carlson says.
If an employee uses marijuana for
medical purposes, the situation could
be more complicated. Federal law still
supersedes the state law. However,
"courts have kind of recognized that
employers are between a rock and
a hard place and given them leeway
based on that," Carlson says.
Some employers choose to prioritize workplace marijuana use and
ignore recreational use after hours.
"The big problem is with determining: What is off-duty use?" Carlson
asks. "Certainly, you're telling people
not to bring it onto the worksite or
use it on the worksite or anything like
that, but without any reliable ways of
showing whether somebody is actually impaired, that can be tricky."
If you go that route, "be prepared
to tolerate a bit of uncertainty," Carlson says.
New laws make the situation even
trickier. Arizona and Delaware have
laws protecting people who use legal
medical marijuana, so long as they
are not impaired at work. Then again,
in 2015, a Colorado court ruled that
you can be fired for using marijuana
even though it's legal there. California's Prop 64 law, passed this fall,
made marijuana legal in that state -
but employers still retain the right to
test for it at any time. A bill filed a few
weeks ago in the Oregon legislature
aims to protect workers from being
fired for using marijuana outside
business hours.
It's difficult to predict how future
cases will land.
"The general trend, at least until
the last election, has been toward legalization and increased tolerance to-

manufacturing-today.com JULY 2017

ward marijuana, but it's still a little bit
unclear," Carlson says.
Still, experts in the marijuana industry are optimistic.
In a CNBC commentary published
in December, medical cannabis entrepreneur Adam Bierman of MedMen
predicted that a major sports league
will approve the use of cannabis
sometime this year. And Greenwave
Advisors, a research firm for the legalized marijuana industry, estimates
that cannabis could be legal in every
state and Washington, D.C., by 2021.

How should you craft
a drug-use policy?
To maximize safety and productivity,
firms operating in states with legalized marijuana must consider whether the drug belongs in their employment policy - and if so, how.
"One thing we've really seen, and
we have recommended to our own clients, is that a company should really
determine whether it wants its usual
drug policies to encompass marijuana
completely or not, and just be sure to
specify that," Carlson says.
Traditionally, employee policies
barred workers from possession or
use of illegal drugs. Companies that
want to keep marijuana within those
prohibitions should spell that out in
their policy. It could be as simple as
just noting that you prohibit use of
illegal drugs and adding "including
marijuana" in parentheses.
Consider working with a drug testing program company, which can
help you write and implement an
effective, legally sound policy, says
Jamie Miller, general manager at The
Advantages, a human resources consulting firm with multiple offices in
Pennsylvania. Find providers at the
Drug & Alcohol Testing Industry Association (datia.org).

Once your policy is ready, make
sure employees know about it.
"Not that I would suggest having
a policy and not actually following
through, but at least if you have that
policy in place that employees have
seen and signed off on, they understand that a drug-free workplace is important to the business," Miller says.

How should you enforce
your drug-use policy?
To assess compliance with drug-use
policies, many firms use drug tests
that require saliva, blood or urine
samples. In some states, random drug
testing is legal. In others, like California and Massachusetts, you must have
cause to invoke testing.
These tests can require a substantial
budget. Urine tests for drug screening
cost between $25 and $50 each, estimates Verifirst, a company that does
employee background checks.
One problem in including random
drug testing in your policy is that
employees don't ace these tests. In a
2014 survey, manufacturing executives in Pennsylvania reported that 35
percent of employees have a serious
problem with drug tests: 19 percent
refuse drug tests, while 16 percent fail
them. Russ Phifer, executive director
of the National Registry of Certified
Chemists, has heard similar sentiments - and sometimes higher numbers - from manufacturers.
One explanation for this failure
rate could be that marijuana can be
detected in blood and urine for weeks
after use.
A drug-screening test could catch
an employee who has never worked
while high, but simply used marijuana
sometime within the last month. Saliva tests are bit more forgiving but still
detect use from three days prior.
Think about a man who had a few


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