- By: Andrew David Easler, Esq.
- Published: Oct, 7 2021
- Updated: Nov, 4 2023
In the past few months, legalization efforts for marijuana have resulted in more than one state decriminalizing cannabis. Nine states have legalized marijuana for recreational use–requiring no doctor’s note for use–so long as the user is over the age of 21. Another 29 states have made marijuana legal strictly for medical purposes, despite a lack of official recognition or endorsement from the US Food and Drug Administration (FDA).
Recently, several studies have been conducted in an attempt to understand the benefit of marijuana’s principal mind-altering chemical, tetrahydrocannabinol (THC), on deteriorating brains. In some of these studies, cannabis has improved the mental capabilities of mice. Human trials so far have also been promising, and it is hoped that THC will be able to slow or even stop the onset of Alzheimer’s disease.
Two drugs recently approved by the FDA, dronabinol, and nabilone, are derivatives of the cannabis plant. These medications are used to treat the symptoms associated with aggressive cancer treatments including nausea and vomiting. In several other countries, a mouth and throat spray called nabiximols has been approved to relieve the pain associated with difficult diseases such as multiple sclerosis. As clinical studies and trials continue to develop, it is likely that we will see many benefits of marijuana derivatives and their further legalization across the world.
However, with all of the benefits that come with marijuana and its derivatives, there are side effects to consider. To what degree will the use of cannabinoids impact society as a whole? Recreational marijuana still has intoxicating effects that can adversely impact reaction time and impair judgment. How should its use be implemented or restricted in the workplace? While there are many benefits of the components of marijuana, there are also some serious side effects, such as difficulty recalling information, issues with attention and learning, mental health, and even a very specific type of cancer.
Safety in the Workplace
In any dose, cannabinoids can cause low blood pressure, rapid beating of the heart, bloodshot eyes, dizziness, and depression. In larger quantities, marijuana use can cause hallucinations and paranoia, depending on the strength of the THC in a particular “type” of marijuana. With greater legal access to THC and a greater portion of the population experiencing its mind-altering side effects, it is likely that work-related accidents will increase in the United States.
The best predictor is to compare alcohol use in workers. Researchers estimate that 16% of patients admitted to the emergency room for work-related incidents tested positive for alcohol consumption and workers that drink are 2.7 times more likely to have injury-related absences from work. While new rules, regulations, and practices will need to be (and have already begun to be) introduced into the workplace to ensure the safety of workers, the good news is that the overall effect of marijuana on the body is milder and shorter in duration than that of alcohol. The bad news is that marijuana’s decreased side effects mean that employees are more likely to “shrug” off the side effects and attempt to operate safety-sensitive duties while under the influence in a way that they might not otherwise when drunk or experiencing a hangover. Positions like truck drivers, crane operators, and train conductors where even the slightest increase in reaction time or split-second decision-making can mean life or death for potentially hundreds of individuals are of most concern, but even in less safety-sensitive environments, the impact can be detrimental.
Productivity in the Workplace
Drug use has been correlated with absenteeism for decades, but what about productivity? What is the impact on the workplace when the employee does show up to work but is under the influence of recreational marijuana? There is little research to support or deny an increase or decrease in overall productivity across all industries; however, the side effects certainly lend themselves to support the conjecture of the latter.
Imagine an important sales meeting and, because of marijuana’s decreased inhibition, an employee laughs at an in-opportune time–offending the buyer and losing the sale.
Imagine an employee working on a retail sales floor and a customer asking for help with a specific product. The employee is under the influence of marijuana and, as a side effect, can’t recall where the product is located and what it does, let alone how to up-sell or cross-sell related products. The customer gets frustrated, leaves, and never comes back.
The researchers at the Department of Labor can record and study rates of absenteeism as reported by employers, but the effect of decreased productivity is a harder factor to study. More research is needed to understand the overall impact of recreational marijuana on productivity in the workplace.
DOT “Covered” Employees and Marijuana
In states where marijuana is legal, employers in certain industries are reporting difficulties in hiring employees who can pass a drug test panel that includes THC. Company Drug and Alcohol-Free Workplace Policies, state and federal statutes, as well as recent court cases all mold the issue of marijuana in the workplace into a potentially dangerous labyrinth of regulations. However, as an employer of safety-sensitive workers as defined by the United States Department of Transportation (DOT), the law is clear.
The regulations governing the United States Department of Transportation’s Drug and Alcohol Testing policies, commonly known as the “49 CFR Part 40” prohibits the use of any Schedule I drugs, even if they are legal in the state. On the federal level, marijuana is still illegal. For the safety of the public, any “covered” employee (an employee in a safety-sensitive position as defined by the DOT) must submit to federally-mandated drug and alcohol testing. If an employee tests positive for marijuana, regardless of prescription or state law, that employee must be removed from their position immediately.
Federal law is very clear: despite legalization in some states, marijuana poses a real safety risk to employees, employers, and the public. Employers with covered employees must continue to comply with DOT regulations, test employees, and enforce all consequences as mandated by law when an employee tests positive for any Schedule I drug including marijuana.
Any employer managing a drug and alcohol-free workplace policy should designate one person to be in charge of the policy. This person is called a Designated Employer Representative (DER) and should be trained on all applicable laws and regulations to ensure compliance. All supervisors responsible for making reasonable suspicion determinations must also receive reasonable suspicion training before making any determinations to test under reasonable cause.
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