Coal Age

JUL-AUG 2017

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48 www.coalage.com July/August 2017 legally speaking The Importance of Clarifying Employee 'Impairment' As Marijuana Laws Evolve by brad hiles As more states con- tinue to legalize mar- ijuana for medicinal purposes and even recreational use, em- ployers' rights and responsibilities are beginning to change. The mere detection of marijuana in a urine sample may not justify discharge in some states. Proof of impairment may be needed. Even in those states where im- pairment is not the focus, the wording in an employer's policies prohibiting drug use in the workplace may unintentional- ly require impairment as a necessary ele- ment for discharge. Proving impairment from marijuana usage is not a simple mat- ter determined by a urine test. Something more is required. When Coal Age last addressed this top- ic two years ago (State Marijuana Legisla- tion Will Impact Minors), 23 states and the District of Columbia had laws legalizing the use of medical marijuana. Since then, six more states have adopted such laws. The number of states legalizing recre- ational marijuana use has increased from four in 2015 to nine as of this writing. Four states have recently passed mar- ijuana legislation with provisions address- ing impairment. Delaware prohibits "zero tolerance" policies in the workplace, so an employer must prove that the employee was in possession, using or "impaired by" marijuana in order to avoid a wrongful discharge claim there. Minnesota has sim- ilar restrictions. New York's Compassion- ate Care Act, which allows individuals to obtain medical marijuana, says employers may prohibit employees from performing their duties while impaired, but the statute does not define "impairment." Arizona's new Medical Marijuana Act prohibits private employers from discrimi- nating against an employee solely because he or she is a registered medical marijuana user, unless employing such an individual would cause the employer to lose money or other benefits under federal law. No- tably, the Arizona statute includes a pro- vision that states that qualifying patients cannot be considered "under the influence of marijuana solely because of the metab- olites ... that appear in insufficient concen- tration to cause impairment." But Arizona has an exception for "hazardous" jobs. While the new laws in only four states may not reflect a trend, they highlight the growing significance of impairment in workplace drug testing. Indeed, most employers' zero tolerance drug and al- cohol policies prohibit employees from using, possessing, or working under the influence of illicit drugs and alcohol. It is difficult to argue that one is not impaired unless he is working under the influence, and vice versa. But other states permit ze- ro-tolerance policies. For example, Colo- rado has legalized marijuana, but its con- stitutional amendment does not prohibit an employer from establishing a zero-tol- erance drug policy. So, in Colorado and in states with similar laws, employers may discharge an employee based simply on a positive urine test. Standards for Proving Impairment The standard-bearer for workplace drug tests has long been the urine test. Al- though research on marijuana and its effects on the human body is continual- ly ongoing, the existing research is clear on one point: a failed urine drug test for marijuana alone is insufficient to deter- mine impairment. The reason for this is that delta-9-tetrahydrocannabinol, better known as THC, the main psychoactive ingredient in marijuana, is rapidly metab- olized by the body soon after marijuana is smoked, and most of the THC is then changed to THC-COOH, or caboxy-THC. THC-COOH stays in the user's system for many hours, so it can be measured hours after drug usage by urine tests. Howev- er, THC-COOH does not impair the user. The research is clear that the effects of marijuana use almost always dissipate after a period of a few hours. As a result, this limited time frame supports reliance on something more than a positive urine drug test result for employment decisions. Studies conducted by toxicologists seem to indicate that under experimental conditions, blood plasma THC levels be- tween approximately 2 ng/mL and 5 ng/mL can establish impairment, while levels of THC above 5 ng/mL to 10 ng/mL are indic- ative of severe impairment. A host of medi- cal professionals suggest using the 5 ng/mL level of THC and/or THC-OH to establish an initial presumption of impairment; how- ever, the mere presence of the serum THC and THC-OH level may not establish acute impairment in an individual worker. But the determination of impairment need not be restricted to blood plasma tests. Definable signs of impairment, which are described below, should also be present. A Comprehensive Drug-testing Policy Here are some elements to consider for es- tablishing a multifaceted employer policy to determine marijuana impairment: 1. Establish specific guidelines regard- ing testing for post-accident and pos- sible impairment assessment, and explain them to employees. In states permitting zero-tolerance policies, a urine test might be utilized. In states requiring proof of impairment, blood tests are recommended. 2. Employees should understand the implications of the results for their employment status based on the em- ployers' policy and tolerance for mar- ijuana and other drug use. 3. Supervisors should be trained to iden- tify definable signs of impairment. 4. Arrange for blood tests to be conduct- ed at an occupational medicine clinic. While there are currently no state statutes or case law that provide a helpful definition of "impairment" for employers, employers can form comprehensive and up-to-date drug testing policies by being cognizant of the developing law in this area. Brad Hiles is a partner with Husch Blackwell. He can be reached at brad.hiles@huschblackwell.com.

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