Impact of the Legalization (I 502) of Marijuana on the Workplace – Implications for Employers Q: When did I 502 come into effect? A: I 502 became effective midnight (12:00am), December 6, 2012. Q: What is the testing method for marijuana? Can you briefly explain the process? A: In the workplace urine testing is the standard method that is used. In law enforcement for DUID or driving under the influence of drugs, the testing method will be blood. In the workplace it is a two-step process, there is a screening test that determines if there are any marijuana metabolites present and then there is a confirmatory test that specifically identifies the active drug, THC, was present. There are other screening methods available such as saliva testing, however saliva testing is only a screening test and must be confirmed in a certified laboratory. Q: Will the State Patrol or other state law enforcement agencies use the cutoff concentrations used by DOT for impairment standards? A: The law states the cutoff level in the blood is 5 ng per milliliter of blood. This is the same cutoff level for urine testing only it is measured as 50 ng per deciliter. Both methods of testing are looking for the identifiable metabolite of the active cannabinoid, THC. Concentrations of THC metabolites in the urine are different than in the blood due to the fact the bladder is a receptacle and the kidneys are a filter of blood. Q: How long does marijuana stay in the system in a 400-pound person that is an occasional user? A: The THC is fat soluble and will store in body fat and slowly release over time. A substantially obese person will store a considerable amount of THC in body fat with continued use over time. It will take an extended time for the body fat to release the stored amount of THC in the body. We have had individuals going through a return to duty program that were at the same time losing weight and their return to duty and follow up testing were actually still showing positive for marijuana at low levels, when in fact it was probably the individual burning off fat and releasing THC into their system and not continued use. The downstream issue of how that is addressed is they must continue to test until they receive a negative marijuana result and it remains negative. These types of situations have to be handled on a case by case basis. If this individual was a DOT driver, there would also be an MRO and a DOT qualified Substance Abuse Professional working with that individual as well so it is not a decision that is just left to the employer to work out. It is important for employers as they are rolling out a new drug testing program or policy to inform employees of the fact that if they choose to use marijuana; it could stay in their system for up to a month. Most people fail to remember when THC is in the body, it is in the psychoactive form, so the individual who is a long time and a regular user (several times a week) is on a low level marijuana high 24 hours day/7 days a week. The brain is never free of the continuous effects of the THC. Q: Have there been valid studies that show employers without a program have higher levels of drug use in their employment populations? A: Yes there have been. If you go to the Institute for a Drug Free Workplace website (http://www.drugfreeworkplace.org ), U.S. Department of Labor website (http://www.osha.gov/dcsp/alliances/drug_free/drug_free.html ) or you can get information through the SAMHSA website (http://www.samhsa.gov ). If you google that question, you can also get a huge amount of information to show correlation between industries and between companies who have or do not have a program. The effectiveness of having a drug free workplace program is when accidents/incidents do not occur. Q: Prescription for marijuana – how do you test them? A: In your policy you should have requirement that any employee that is taking medication with a warning label should advise their employer -- not of the medication they are taking and not of the condition being treated (violation of ADA & HIPPA) - but a note from their prescribing physician that the medication they are taking will not affect their ability to perform safety sensitive work. In a testing process what happens is that if a drug is found positive at lab level the test result is forwarded to a Medical Review Officer (MRO) for review. The MRO will make personal contact with the donor and make sure there is a valid medical condition for the prescription and there is a valid prescription. In addition, the MRO will review the prescription and confirm that the drug test cutoff levels are consistent with the dosage prescribed in the valid prescription and if so the result will report as negative. If the dosage of the prescription has been abused or the prescription itself is not valid, the result will report as a positive drug screen for marijuana. Q: How long will THC show in the blood sample? A: Workplace testing does not use blood as a specimen. Urine or saliva are the sources for workplace testing. However, blood is the only permitted source for testing for DUID (Driving under the Influence of Drugs). There are a number of variables determining the answer. Size and weight of the person, the amount used, the concentration of THC in the cannabis, method of intake (smoked or ingested) and history of use all affect the detectable concentration over time. That being said, a regular heavy user may have detectable levels of THC in the blood for up to several weeks; for the one-time user, at least for several days. Q: If an employee causes injury to themselves or an outside party during work (i.e. car accident) while driving a company vehicle, and the employee is drug tested and tests positive for THC, where does the liability fall for the employer? A: Anytime an employee is conducting company business and an injury occurs, general liability goes to employer. If employer knew or is it proven they should have known the employee was impaired and didn’t take measures to control that behavior in the workplace, gross negligence liability exposure is evident. Q: Will L & I be doing more tests due to work related injuries to test for THC? A: Presently L & I does not require reasonable suspicion or post-accident drug testing. There was previously a multi-year program that gave a premium discount if the employer had a drug free workplace program including testing. That was a sunset law and has ceased to exist. We doubt that L & I will mandating testing or offering discounts due to Washington’s economic state. A more practical approach is for group retro programs to mandate testing as a part of participation in their programs. That is a much better practical solution than anything that might come up through the state of Washington. Q: What is ‘useable’ marijuana? A: That is a brand new term that was introduced by I 502. By definition in the new state law, “useable marijuana” means the dried marijuana flowers. The term “useable marijuana” does not include marijuana infused products. Useable marijuana consists of the flowering buds where the highest concentration of THC is found. Q: What is the frequency of random testing should an employer consider in regard to the latitude of the new law? A: The Federal requirement of testing is 50% for drugs, 10% for alcohol annually. That is a good point of reference for the non-regulated employer as well. The greatest effectiveness of an employer random drug testing program is not the frequency of testing but rather its visibility. The greatest value is as a deterrent where employees are aware of the testing program and the consequences of testing positive. Q: Where can we print some of the info that could help us clarify our policy and ensure we don’t leave any important points out? A: We are preparing some talking points for companies interested in revising their company’s drug testing policy to prohibit marijuana. This information will be posted to the Resource Center very soon. Q: In the presentation, you reference physiological and psychological consequences. Are you referring to the 18 days of full life of marijuana or long term effects? A: Actually both. For long-term use there is demonstrated dependency. For younger users there are issues of arrested emotional and interpersonal development (maturity), memory and problem solving difficulties. Those tend to dissipate with abstinence. Studies of short-term use effects (within the first 5-15 days) problem solving issues, random quality judgment, delayed decision making, altered timing and short-term memory recall. Q: Our Company has a post-accident test requirement. Will we have the latitude to determine whether presence and impairment have different levels of discipline? A: That’s a tough question because there is no objective or subjective standard of impairment of marijuana. Right now 50 nanograms is the cutoff level for mandated and most non-mandated drug testing. At that level, you can be assured that no passive inhalation can account for a positive drug test. In terms of how much is too much – the only safe standard is the measure of presence. Currently, you cannot measure impairment of motor coordination. Testing methods may come in the future, but right now there are no impairment standards. Q: We are a construction company and hire many subcontractors. How do we protect ourselves and our clients from employees working for our subs that are impaired by marijuana use? A: We recommend that general contractors have written into their contract that the subcontractor provide proof that they also have an impairment free workplace program that mirrors the standards of the general contractor. Q: Does First Choice have a good handout for employees on marijuana facts? A: Due to the changes in the law, First Choice Health EAP is revising all our relevant materials and has not yet come up with a good handout for employees on marijuana facts. As you can imagine, it is challenging to develop such a handout that would work for all of our hundreds of customers. Our approach has been to support each company individually on this issue, facilitating discussions on policy revisions, and providing Supervisor Orientations and Trainings that allow a discussion on this issue as well as a review of policy changes and suggestions for supervisors based on their corporate approach to this issue. (NOTE: MBG has a series of brochures on the various drugs of abuse. Call our office 360 493-0522 for pricing) Q: First Choice EAP – will you come to our workplace to do a supervisor training or send us materials electronically? A: Our EAP does come to the workplace for a supervisor training and we can send materials electronically. These trainings are included in most of our EAP contracts at no additional fee. Q: MBG – Do you have a model/sample policy that we can use? A: Yes, MBG has a model policy that is provided to all MBG clients when they sign up with our services. The policy is available for purchase to non-MBG clients for $350.
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