Impaired by Marijuana or Not Impaired … That Is the Question

Cannabis Business Executive

Amy Bharj, Senior Counsel in the Employment, Labor & Workforce Management practice, in the firm’s Chicago office, authored an article in Cannabis Business Executive, titled “Impaired by Marijuana or Not Impaired … That Is the Question.”

Following is an excerpt:

A new reality is taking over.  Medical marijuana is now legal in 33 states and the District of Columbia, and recreational marijuana is legal in 11 states and the District of Columbia. The marijuana wave is here to stay. For employers operating in any of these states, the chances are high that at least some of your workforce is partaking in this newly legalized extracurricular activity.

So now its 1:20 p.m. on a regular work day, and you suspect that one of your employees has come back from lunch in a marijuana daze. What can you do? Most of the medical and recreational marijuana laws that have been enacted around the country allow employers to take disciplinary action against an employee if the employer has a good faith belief that the employee is “impaired” or “under the influence” of marijuana during working hours. But how can an employer tell if an employee’s legal use of marijuana outside of work hours is causing him or her to be impaired during work hours?

Unfortunately, science has not yet solved this problem. The current blood, saliva, and urine tests can detect the presence and amount of Tetrahydrocannabinol or THC (the psycho-active chemical in marijuana) in a person’s system, but provide no conclusive proof of whether the detected THC caused the individual to be impaired at any given time. For this reason, it is risky business for employers to rely solely on a positive urine drug test in concluding that an employee is impaired at work and then take disciplinary action again that individual. ...

The science of impairment testing is lagging behind the rapid legalization of marijuana. Until it catches up, employers need to know the ins and outs of their state’s marijuana laws and put written procedures in place if they want to take action against employees whom they suspect are impaired at work.