The Building Tradesman Newspaper

Friday, November 16, 2018

State's new pot law lights up a few tokens of interest...

By The Building Tradesman

Michigan became the 10th state to legalize the recreational use of marijuana on Nov. 6. Based on legalization and drug testing experiences here and elsewhere, here are a few items to consider as they relate to the workplace. 

*A Gallup poll in October 2017 found that 64 percent of Americans favor legalization of marijuana. In 1969, only 12 percent supported changing the drug’s status.

*According to Quest Diagnostics, drug use by the American workforce remains at its highest rate in more than a decade, according to an analysis released in May.

"Nationally,"  the Quest report said, "the positivity rate for the combined U.S. workforce held steady at 4.2 percent in 2017, the same as in 2016, but a dramatic increase over the 3.5 percent positivity rate from 2012, which represented a 30-year low. The analysis of 2017 data also suggests shifting patterns of drug use, with cocaine and amphetamines positivity surging in some areas of the country and marijuana positivity rising sharply in states with newer recreational use statutes."

*Colorado became the first state to legalize recreational marijuana in 2012. Quest said Colorado's positive test rates for marijuana were up 20 percent between 2012 and 2013, and then up another 11 percent from 2015 to 2016 (2.61 percent positive urine test). 

*The Michigan Chamber of Commerce, arguing against passage of Proposal 1, said that "given the lack of an on-demand impairment test for marijuana, employers are forced to rely solely on blood and urine tests, neither of which can reliably provide information about present impairment. The lack of an impairment test will create significant human resources dilemmas for employers" with the legalization of marijuana in Michigan."

*Employers will have open-ended liability under the new law, the Chamber further argues. "Employers have a responsibility to protect all employees," the Chamber says. "Under the federal Occupational Safety and Health Administration, employers are required to provide their employees with a place of employment that 'is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.' Failure to do so opens employers to liability and lawsuits. Yet, there is no way to regulate marijuana in the workplace outside of current drug testing protocols."

*"Surveys show that employers in states where recreational use of marijuana is legal are gradually removing marijuana from pre-employment drug screening panels," workplace attorney Sarah Nirenberg wrote. "Given the more widespread use of marijuana, combined with the fact that THC metabolites can remain in a person’s body for a month, pre-employment marijuana screens could result in a labor shortage in certain job classifications because a high percentage of candidates will fail the test."

*"What’s the biggest issue for employers right now when it comes to legalization?" asked Bridge Michigan. "Resoundingly, attorneys said the main challenge for employers is that, unlike alcohol, there’s still no reliable test nor legal standard to determine impairment from marijuana. This is posing a problem for more employers as the economy reaches near-full employment and companies struggle to find workers to fill open jobs."

*Marijuana is still illegal under federal law. Entities that receive federal funds or are regulated by the U.S. Department of Transportation will still be subject to testing consistent with the federal Drug Free Workplace Act. This Act requires drug-free workplace policies for marijuana and other drug use.