Drug problems for pool and spa businesses range in severity. There are many employees whose quiet consumption of recreational drugs in off-hours will never be noticed. But there are plenty of others who will make drug use part of their workday, compromising the quality of their work and the reputation of their employer.
What should you do? The issue has grown and become more complicated as more and more states legalize cannabis for medical and recreational use.
Should drug tests even include marijuana anymore? If they do, and evidence of marijuana use pops up, should employees be penalized? And further: Do employers have to accommodate for the medical use of marijuana under the federal Americans with Disabilities Act, or state human rights laws?
STONED ON THE JOB
Such questions are moving to the front burner as employers face a greater risk than ever from a growing culture of impairment that shows no signs of tapering off any time soon. Workforce drug-test positivity hit a 14-year high in 2018, according to a new analysis from Quest Diagnostics, a leading provider of drug test information.
And for a growing number of individuals, pot has become the illicit drug of choice. "Marijuana is the second most widely abused substance nationwide, after alcohol," says Amy Ronshausen, executive director of Drug Free America Foundation, Inc., St. Petersburg, Fla. "According to a survey by drugabuse.com, more than one in five respondents said they use marijuana recreationally at work during work hours. Nearly 5% admitted to daily use and more than 13% use it more than once a month."
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Why the sudden upsurge? It's clearly due to the growing acceptability of marijuana by society in general. "The legalization of marijuana on the state level has continued to grow since California first allowed the drug's use for medical purposes in 1996," says Joe Reilly, president of his own drug testing consulting firm in Melbourne, Fla.
"Typically, states will first pass legislation legalizing medical marijuana. Later they allow its recreational use." Thirty-three states now have medical marijuana statutes. Ten states plus the District of Columbia allow both recreational and medical use of marijuana. And the numbers grow every year.
Legalization makes marijuana more socially acceptable. "When a substance is legal and has massive amounts of marketing behind it, there are going to be more consumers," says Ronshausen. "This is concerning because we are talking about a substance that is impairing people and has a significant impact on health and public safety."
THE COSTS FOR YOUR BUSINESS
For pool and spa companies, the downsides of marijuana use are clear. Builders, service companies and retailers have all seen the results in employees — lower productivity, higher tardiness and absenteeism, greater use of medical benefits, and increased incidents of small rules infractions.
And then there is the liability. As marijuana becomes more popular, employers face a greater risk of lawsuits when dealing inappropriately with individuals under the influence. In the pool and spa industry, there are a number of situations where the public can be endangered by an impaired employee, starting with service pros driving to their next stop.
At smaller companies especially, one accident and/or lawsuit can be devastating.
Unfortunately, designing workplace rules that address marijuana use is easier said than done.
Two things are certain: In every state it is allowable to have rules that prohibit the use of marijuana on the job, and that prohibit an employee from being impaired while on the job. But beyond that common framework, variety abounds. Complicating the issue is the fact that some employees have been certified by the medical community to use marijuana as medicine.
"In some states you cannot discriminate against workers in non-safety sensitive positions who need marijuana for medical reasons," says Reilly. "In such cases, allowing offsite smoking might be a workable accommodation. In other states you may be allowed to terminate a worker for medical use of marijuana, even if he or she is not in a safety sensitive position."
Furthermore, some laws are complex. "In Nevada, the law says that employers cannot refuse to hire someone who is using marijuana legally in the state," says Dr. Donna R. Smith, regulatory compliance officer in the Tampa Bay, Fla., office of Workforce QA, a nationwide third-party administrator of drug free workplace programs. "On the other hand, the same law states that once the employee is hired the employer can test for drugs and terminate for positive results if the employer has announced that no marijuana use by employees will be tolerated."
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Another: "In Illinois, the statute says that employers can have zero tolerance policies for marijuana use and can test for marijuana," says Smith. "But employers cannot take any action against employees unless it can be proven they used the marijuana on company property while on duty, or were impaired by marijuana use while on duty or used marijuana while on a call to perform customer services."
Faced with this legal confusion, employers at one time could fall back on a general appeal to the federal ban on marijuana, figuring it trumps state law. No longer. "The fact that marijuana use is federally illegal, as a criminal matter, does not mean that states cannot legislate employment status," says Caldwell. "Employment is generally a state matter."
Employers also need to be aware that some municipalities have passed laws about marijuana. A new law in New York City states that you cannot test for marijuana usage except for safety sensitive positions. The law is scheduled to take effect on May 10, 2020.
If employers must deal with a patchwork of state and city laws, the end result is often a confusion that causes delays in formulating and implanting workplace drug policies. "Business leaders have not really been talking about this topic as they should," says Reilly. Delay can be costly. "Companies that do not invest the required time and effort to adjust their workplace policies end up making hasty employment decisions. And those often lead to lawsuits. Maybe they get sued, for example, for terminating or denying employment to someone who fails a marijuana drug test."
So how do you design policies that create safe workplaces while protecting your business from lawsuits? The solution involves balancing safety with liability. "Employers need to reach some sort of balance between the creation of a safe workplace and the risk of litigation," says Caldwell. "Reaching that balance can be difficult. For example, an employer may be tempted to state that accommodation for marijuana use will only be provided to the extent mandated by law. However, that employer needs to not only look at marijuana laws, but also consider the disability and human rights laws that may provide protection in a given state."
TESTING FOR POT
One thing is for sure: Even in states where pot is legal, employers may still outlaw its use on the job. That sounds good on the surface. But a problem has arisen with the widespread packaging of marijuana in new forms. "We are not just talking about a joint, which would be easy to see and smell," says Ronshausen. "We also have products like granola bars, soda and candy that contain marijuana. Without actually looking at the packaging, how would you know employees are using the drug?"
One way to spot use is, of course, to test. We have already seen that states are complicating this issue with a patchwork of laws that dictate when testing can and cannot be used. And there's another problem: No marijuana test has yet been devised that can indicate impairment. That's a big difference from alcohol testing.
"Normal workplace drug tests can only reveal that an employee has recently used marijuana — not that the employee is actually impaired at any given point in time," says Faye Caldwell, managing partner of Caldwell Everson, a Houston-based employment law firm specializing in workplace drug testing.
While blood tests can reveal the level of marijuana, currently no consensus exists as to what level signifies impairment.
Indeed, the new methods of ingestion can result in blood test variances. "While smoking marijuana can result in a quick spike in THC blood levels, that is not the case for other methods of ingestion," says Caldwell (THC is the principal psychoactive constituent of cannabis). "While ingesting marijuana as an edible, some people might appear very impaired, but their blood levels of THC might never climb very high."
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If it all sounds too complicated, why not just avoid the issue as much as possible? "Some employers are deciding to stop testing for marijuana, because of the complexity of the issues, litigation risk and limited availability of workers," says Caldwell. "And in those states that prohibit adverse employment action for off duty recreational marijuana use, employers may wonder if any purpose at all is served by such testing." Whether a test ban is a good idea depends on the laws of the state or states where your business is located, and the nature of your business.
But putting a halt to testing is no panacea, says Caldwell. "Not testing poses its own risks — such as decreased productivity and employee safety issues."
Indeed, a total testing ban can keep the employer from determining if a certain accident was caused by marijuana use. "If I were advising an employer who was adamant about dropping their marijuana testing, I would urge them to at least test for marijuana post-accident," says Reilly. "They should also test any time an employee is exhibiting signs and symptoms of some drug influence."
COMMUNICATE WITH EMPLOYEES
Testing, then, may not disappear from the workplace anytime soon. But if testing alone can't cover all the bases, how does an employer know an employee is impaired by marijuana use? "There is no exact answer," says Caldwell. "I encourage my clients to train supervisors to spot behavior that is characteristic of impairment, and to have policies that call for specific steps to take."
Suppose, for example, an operator of a backhoe on a pool jobsite is seen to be acting in an erratic manner that might suggest use of marijuana or another drug. "Your policy might call for steps such as writing a report on what is observed, having the employee take a drug test and removing the employee temporarily from duty." These policies, like any that touch on drug use, must be approved by an attorney knowledgeable about your state laws.
Whatever the decision your business makes on drug policies, communication with the workforce is critical. "I like a lot of transparency on this topic," says Caldwell. "Let your employees know your policy and if it calls for accommodation. And give people the opportunity to do the right thing by telling them they cannot come to work impaired, and they cannot use marijuana in the workplace."
Take extra care with those employees who have said they are imbibing the substance. "I encourage employers to have candid conversations with workers who are using marijuana," says Caldwell. "Talk with them about when they use it, how they use it and what to do to avoid being impaired on the job."
At the end of the day, she adds, "There is no one-size-fits-all answer to the question of a workplace marijuana policy. We are still in our infancy on this topic. The biggest challenge right now is uncertainty."
As we have seen, the growing number of state laws legalizing marijuana is causing an increase in the use of the drug by employees. Will that translate into higher rates for employers' liability and workers compensation insurance? Experts say it's too early to tell, but the answer could well be yes.
"It could take a few years, but we anticipate higher insurance rates in those states legalizing marijuana," says Ronshausen. "In a study reported by the National Institute on Drug Abuse, U.S. employees who tested positive for marijuana had 55% more industrial accidents, and 85% more injuries, than employees who tested negative." Insurance rates go up for employers who experience more accidents.
Rates may also increase for a related reason. "In those states that offer workers compensation insurance discounts to employers who maintain drug free workplaces, drug testing is required — and it must include testing for marijuana," says Smith. "If employers decide to not test for marijuana, they risk losing their insurance premium discount."
Phillip M. Perry is a New York-based writer and consultant.