Certified safety professional shares thoughts on changing laws.
By Mike Price
Approval of legalizing marijuana continues to grow across a variety of age groups here in the United States.
A Gallup poll from October 2016 showed support for legalizing marijuana increase to nearly 60%, with approval not just coming from Millennials but from Baby Boomers through Generation X.
Following the November 2016 election, 28 states plus the District of Columbia had some form of legalized marijuana. Congress passed a ruling two years ago preventing the Department of Justice from putting federal funds toward blocking medical marijuana operations in states with legal markets for the drug. And new legislation was introduced in 2017 to extend these provisions.
However, the federal government upheld the drug’s classification as a Schedule 1 controlled substance in the United States, keeping it illegal for any doctor to prescribe marijuana.
If you’re confused or overwhelmed, it’s understandable. Here to help clear up some of the confusion is Gary Ganson, CIH, CSP, a certified industrial hygienist and certified safety professional who is the national practice leader/director of industrial hygiene services for Nova Consulting Group Inc. in Kansas City, Missouri. Ganson has nearly 40 years of experience in the industrial hygiene, safety, and environmental fields.
Water Well Journal spoke with Ganson regarding marijuana in the workplace and how it impacts those working in the water well industry.
Water Well Journal: Can you share your initial thoughts on marijuana issues in the workplace?
Gary Ganson: One of the many problems with marijuana detection is the residual time it’ll stay in your blood system. Alcohol, you can test for in real time—if you had a drink last night and we test you tomorrow, you wouldn’t show an elevated blood alcohol level. But with marijuana, there can be a residual for many days and you may not be impaired, but you may exceed the requirement of testing positive for it. There are a lot of issues still surrounding it: how to manage it in the industrial settings, how to test for it appropriately, and can it be tolerated under medical use.
WWJ: What advice do you give to your clients?
Gary: It’s still considered a Schedule 1, federally regulated drug. When you look at the fact it’s still classified as an illegal narcotic, the majority of our clients and even the ones I talk to about their drug prevention program is it still must be regulated at the same level that they were prior to their state taking some type of allowance action on marijuana. If I’m dealing with a client in Colorado, the state law shouldn’t have any effect how they’re regulated in their industry, meaning it still then needs to be considered impairment if they test positive for marijuana use.
It does become a sticky subject when testing for impairment of marijuana. The current testing program in use can indicate they have used marijuana within the past month. It is difficult to say a person is impaired necessarily even when they test positive in blood or urine for marijuana constituents or metabolites of marijuana use. Meaning there is a longer residual time after a person has partaken in some marijuana than there would be for alcohol.
You can be a user on the weekend and then Wednesday afternoon you are randomly selected to take a drug test, and test positive for marijuana, but if you’re drinking and smoking, you wouldn’t test positive for alcohol. That would be classified as violating drug rules and subject to disciplinary action or termination. So you still may not be impaired, but you could test positive for it. One of the concerns is how to
legitimately test somebody who is truly psychologically or physiologically impaired, or both by marijuana use.
WWJ: Which regulatory agencies can conduct random drug testing of employers working in the water well industry?
Gary: Currently, the only federally regulated department that can impose random drug testing on employees in the private sector is the Department of Transportation. Employees who operate certain types of motorized or transportation equipment are required to participate in random drug testing managed by their employers. Examples include water well drillers driving a truck over 10,000 pounds and pulling drilling rigs, semi-truck drivers, railroad engineers, and pilots are all subject to random drug screening. The Occupational Safety and Health Administration can only recommend and cannot enforce drug testing either on a random basis or after an incident occurs.
WWJ: How about if a company works in multiple states? Do they abide by where the company is headquartered for the marijuana law?
Gary: That’s a good question. At this point, what we’re still looking at is the federal government under Schedule 1 drugs, regardless what states have legalized the use of both medically and recreational marijuana. I think the federal government is taking a more liberal look on how they regulate or look at violations of marijuana law.
It’s still the companies, regardless of how many states they work in, are still considering it a Schedule 1 drug and to be regulated no different than they would with alcohol abuse, heroin, or cocaine use. It would still be put in that same category as a disciplinary action regardless of state location of the work you’re doing. Most companies know that, just like with alcohol abuse, we know alcohol is a legally regulated drug, but we don’t expect people to come to work impaired from alcohol. Following that same concern, we don’t expect people to come to work impaired from marijuana either.
Most companies are still going to take the conservative view of drug abuse and drug usage, the same as they would with over-the-counter drugs or prescription drugs. A company I work with now and many others also have a requirement that states if someone has been given a prescription drug which is a narcotic, they are to refrain from work, especially if they could be impaired to do tasks such as driving a vehicle or using heavy machinery and they would put themselves or others at risk.
Marijuana has to fall under that same actionable classification of how you’re going to manage your employees so people aren’t impaired and put at risk.
I’m glad you’re doing this because people really do have to ask these questions of how are we going to manage this, how are we going to regulate it, how are we going to view this, and be very specific with their employees.
WWJ: Here’s a scenario that could be common in the water well industry: A driller gets hurt and is prescribed marijuana for pain relief who then subsequently tests positive, or an older driller who has arthritis and smokes marijuana for it. What happens if they test positive?
Gary: That’s again part of the real sticky situation when an employee has a physician who prescribes marijuana use and this person is a drill rig operator or a CDL (commercial driver’s license) driver. Obviously, they’re going to test positive for marijuana use regardless of when they’re tested. It’s still going to come back to it’s a violation of the federal law and how is the employer going to handle it, especially if there is a possibility of putting somebody at risk.
The employee must have an understanding that the employer has to abide by their drug policy that prohibits the use during working hours of prescription medication that causes impairment. Marijuana would fall under that same category and could still be a disciplinary or termination result.
My position, at this point, is what are the things we need to do as a nation, and I know there is some research taking place of how do we actually determine that a person is psychologically or physiologically impaired after smoking marijuana. Just because we find residual amounts of THC (tetrahydrocannabinol) in somebody’s blood or urine, is that an indication of impairment? And it really, at this point, is not. It’s just an indication of previous use.
For that situation, you make a judgment call based on the federal law and your own HR policies at this point. But the other issue is if someone is taking narcotics—and this is one of the things a lot of companies are putting in their personal management directives—the fact is if someone is issued a prescription for a narcotic substance, while they don’t have to disclose what they’re taking, and they’re an operator of heavy machinery, they need to disclose that to human resources so they don’t put themselves at risk of causing an injury to themselves or others, or even risk losing their job.
WWJ: What advice do you give to your clients?
Gary: My suggestion typically when I’m talking to a client is to modify their human resource management manual to identify the fact there is a possibility if marijuana is prescribed to an employee, it’s considered a narcotic and this needs to be disclosed; and if then the employee tries to hide it and not disclose it, it could be a disciplinary offense. This policy must be communicated to employees so they’re not trying to hide something and let their employer know this is what I’ve been prescribed, this is what I’m taking, this is what I’m doing. It’s got to be something where they’re not afraid to have that conversation.
The employer is in a pickle when it comes to this type of disclosure of information anymore, and short of having a good policy of how they’re going to manage it, it could put them in a precarious position with a valued employee. Having that policy, having that conversation with the employees is so critical right now.
WWJ: How would you recommend having that conversation with employees?
Gary: I would definitely do it in a group setting. Pull everybody in and make it an equal opportunity type of information setting where you’re not specifically identifying any single employee. If you do have an employee who is seeking some one-on-one guidance, counseling too, then obviously have that conversation or provide for them a counseling benefit.
But definitely, all employees should be given the same type of information so it’s that same level playing field where everyone understands what is expected and what the repercussions might be, if any.
Then also emphasize the fact the employer isn’t necessarily looking to punish anybody but we just want to make sure everyone understands what we’re talking about, what’s going on, why it’s happening, what do we need to do, how do we manage it, so at the end of the day the employee is safe and doesn’t get injured on the job and nobody else does either.
WWJ: What does the future bring in this area of regulating marijuana and how human resources can better manage the use of it?
Gary: I’ve done some soul-searching myself on how this might play out. I’m a child of the 1960s, and I’m definitely not pro-use, but if we can better regulate it I think we can better manage it.
I think there is going to be some legislative change in the way it’s classified and the way ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) and the FBI even try to go after it. I’m not sure under the current presidential administration going forward that much is going to be happening along those regards. I don’t know if we’ll see rules like this be minimized yet in the next four years; I could be wrong. I’m still hoping, though, the DEA as they continue to move forward will look at maybe reclassifying it and regulating it a little bit better. Because the truth is, marijuana will not be going away.
I’m not one to advocate that all drugs be legalized so they can be better managed, but I think with marijuana usage the way the states are starting to manage and regulate it a little differently, the federal government needs to look at how it regulates it and what classification of a drug they put it in. A little bit of deregulation along those lines can go a long way in helping to better regulate its use and abuse.
But with reductions or changes to federal or state regulation, I don’t think we’re going to see a lot of companies desire to change their internal usage policies. I still think it’s going to be right up there being managed similar to alcohol abuse or use on the job. I think that’s what will probably continue to occur. But again, that being said, we still need a much better method of testing people quickly and accurately to effectively monitor impairment, and I’m not sure how quickly or when we’ll see that change.
WWJ: Lastly, what are some basic guidelines one should follow in setting up a drug prevention program on marijuana in the workplace?
Gary: Many companies are attempting to determine how the new laws impact their current practices regarding drug policies. The changing state laws and OSHA’s new record-keeping policy and their encouragement of not doing post-accident drug testing so as not to discourage reporting an accident or incident make it difficult to determine how a company will modify or enforce their drug abuse programs.
However, as I have mentioned before, working with employees, state representatives, and many other human resources–related law and consulting firms can help a company determine a best management style that will protect them from loss-related incidents that can injure employees, others, and damage equipment. Also, making sure to protect the company from unfair practice lawsuits brought on by employees who are legal users.
When in doubt, I always recommend to consult a law firm that specializes in employment law to make sure all internal human resources policies don’t infringe on the employee’s rights, but also protects the interests of the company.
Mike Price is the senior editor of Water Well Journal. In addition to his WWJ responsibilities, Price produces NGWA’s newsletter and contributes to the Association’s quarterly scientific publication. He can be reached at firstname.lastname@example.org.