By William Kirchhoff

Marijuana has been glorified, vilified, and medicalized. With 23-plus states and the District of Columbia having legalized medical marijuana, it is now a cascading event that is becoming a new social norm. In 2014, the House of Representatives passed a bill that if approved by the Senate, would remove marijuana from the federal government’s Controlled Substance Act Schedule I.

Thus far, most of the efforts by local government officials in states that have legalized medical marijuana have focused on enforcement, zoning, licensing, sales monitoring, distribution control, and revenue collection. But when there are no longer legal restraints against its use, it could emerge as a unique workplace problem for local government management to cope with, including legal, ethical, operational, and organizational culture issues.

Local governments in those states that have legalized medical marijuana will be pressed by employees to treat the use of medical marijuana no differently than other legally prescribed medicines like Vicodin or Percocet, which can impair judgment. This could bring about a variety of challenges, with some having costly unintended consequences that managers will have to adjust to.

Protecting City Hall’s Interests

The protection of local government employees is the intent of this article, which is a follow-up to one I coauthored on medical marijuana in the December 2013 issue of PM. This article addresses some of the issues that managers might have to deal with because of the ease with which marijuana can be obtained and the growing acceptance of its use—both medically and recreationally.

Cities in Colorado, Washington, and other states where medical marijuana has been legalized have been dealing effectively with such external challenges as dispensary location, taxing mechanisms, and permit requirements. Communities that I am familiar with, however, don’t seem to be thinking through the workplace implications that will arise if marijuana is removed from Schedule 1 and the consequences of it emerging as a unique public workplace problem.

Legitimate Challenges

The challenge now is whether sensible and systematic policy changes will be implemented, or will inaction leave employees unclear of their rights and status? Most current local government drug and alcohol policies I have studied are not sufficiently comprehensive to effectively control the use of medical marijuana.

In fact, most of the policies leave an organization with considerable exposure to the threat of employment law litigation, workplace confusion, unnecessary labor strife, and loss of community confidence.

Current policies, for example, use such drug policy terms as testing site, testing facility, and drug test without the specificity needed to assure the accuracy and reliability of the techniques, equipment, and laboratory facilities used in the testing. Another example is the term safety-sensitive, which is used to establish which employees are subject to drug testing.

Often this general term is not specific in a job description or designation. To most people, emergency responders, truck drivers, and equipment operators are understandably safety-sensitive positions. But what about water plant operators, recreational leaders, mechanics, and code enforcement personnel for whom the safety of others is their responsibility?

A tough-to-deal-with furball of legal, operational, and labor-related challenges is possible if a local government’s written drug policy is ambivalent and lacking in specifics.

Up to now, management has focused almost exclusively on the minority group of employees who are illegally using marijuana while at work—the abusers. The legal right to use medical marijuana, however, will affect two other employee groups—the legitimate users and the innocents. Legitimate users will medicate in accordance with the law and their physician’s advice, and they will adhere to workplace policies.

Managers will also have to deal with the innocents—those employees who have not used any marijuana but are affected by simply being in the workplace and might test out false-positive in a random drug test. Such edibles as poppy seeds can cause a false-positive test outcome. Prescription drugs like Marinol that are used for anorexia, HIV, and cancer patients can test false-positive for marijuana.

I believe it’s the responsibility of the employer to protect these workers from the embarrassment, stigma, and possible discipline attached to testing positive for marijuana as a result of using other medications or eating a common food.

Modernizing Drug Policies

My research indicates that local government policies pertaining to drug use might need to be tightened up with respect to marijuana. Should, for example, a medical marijuana prescription that’s written by any physician suffice?

In California, for example, it is remarkably easy to obtain a medical prescription called a recommendation to use medical marijuana. Would it be more responsible to require such prescriptions to be reviewed by the organization’s medical review officer (MRO), usually a contract physician specializing in pharmacology and toxicology?

An already weak drug policy that does not take legalized marijuana into account is detrimental to the organization, which might result in two inevitable outcomes. One is the almost incalculable number of legal, operational, financial, and political consequences that will arise.

The other is that organized labor will seek to protect their memberships regarding testing protocols, second-chance opportunities, confidentiality, random testing procedures, and so forth. The discussions I have had with public sector labor officials make it evident that they are ahead of local government management and are currently developing negotiating strategies to protect the rights of their membership as it pertains to medical marijuana.

Evolving societal and legislative norms, court rulings, and potential legal consequences mandate that whatever changes made to a government organization’s drug policies be done with first-rate attention from legal staff, human resources professionals, and operational managers.

Workplace “What Ifs”

One purpose of this article is to use the “What If” decision-making model as a mechanism to brainstorm the unintended consequences of medical marijuana. By using this approach, managers, attorneys, human resource specialists, and department directors will be able to anticipate some of the unintended consequences.

Cannabinoids affect sensory, psychomotor, and cognitive function. According to the U.S. Chamber of Commerce, studies reveal that a worker using marijuana is two times more likely to request time off, three times more likely to injure themselves or another employee, and five times more likely to file a worker’s compensation claim.

There are two considerations that frame the new marijuana challenge for local government. The first is the necessity of identifying the preferred outcomes of those in charge. The second consideration should be the seamless and positive acceptance of marijuana as a drug that can be used legitimately by employees once the legal barriers vaporize.

While the list can seem endless, here are some examples of the “What Ifs” that public officials will have to contend with.

What if:

• An employee who has been prescribed topical marijuana for joint pain tests positive without having inhaled or ingested marijuana? Will he or she face disciplinary action?
• An employee fails to notify his or her supervisor as is required for the use of other judgment-impairing prescriptions? Will the marijuana-using employee be treated the same as employees who have not reported their use of hydrocodone, antidepressants, cold medicines, sleep inhibitors, and the like?
• An employee is suspected of being in an impaired mental or physical state because of marijuana use? Will the regulatory protocols be identical to other prescribed judgment-impairing medications commonly used by employees?
• An employee’s legal counsel asks, “How many other employees of record have officially advised their employer that they are using prescription medications that might impair their judgment?” Experience as a former manager warns me that only a few employees will share this information with their employers.
• A supervisor who has not been adequately trained to observe “marijuana behavior” in the workplace selects an employee who is not under the influence of marijuana or judgment-impairing prescription medication for testing? What are the legal implications and liabilities?
• An employee’s physician certifies that the prescribed amount of marijuana does not impair judgment? Is she or he required to report the use of medical marijuana?
• An employee uses medical marijuana during off-duty hours and tests positive to random testing but exhibits no judgment impairment?
• The union demands that the testing process, frequency of testing, or review process that is used for medical marijuana must be identical to the standards applied to other prescription medications that may impair judgment?
• Labor initiates contract negotiations to protect its employees’ rights regarding the use of medical marijuana? Will the government’s negotiators have the adequate expertise to protect its interests and the civil rights of its workforce?
• A supervisor discriminates because she or he can’t get past the stigma associated with marijuana?
• Unionized employees demand that the use of medical marijuana by employees be prohibited?
• An employee using medical marijuana is injured on the job because of impaired judgment?

Emerging Questions

The “What Ifs” lead to these questions, among others, that must be addressed:

• How does the employer protect the professional reputation of employees who choose to use medical marijuana legitimately?
• How does the employer establish testing thresholds that will meet reasonable legal standards?
• What process will the employer use for a third-party medical review of marijuana prescriptions issued to employees?
• What methods will be used to determine the acceptable length of time medical marijuana can be in an employee’s system before it is not considered judgment impairing?
• What are the employer/employee options if an employee is prescribed medical marijuana for a chronic problem—light duty, medical leave, disability retirement, and so forth?
• What are the testing levels that qualify an employee as being judgment impaired if he or she is using prescription marijuana?
• What if the union demands that whatever testing process, frequency of testing, or review process that is used for medical marijuana be identical to the existing standards applied to other prescription medications that might impair judgment?

Checklist for Drug Policy Revision

The fundamental rule here is that the drug policies developed by local governments should be specific, comprehensive, and understandable. General suggestions regarding “tighter” drug policy revisions are found in the checklist outlined below.

The checklist is organized into three categories. Category 1 pertains to policy and legal nuisances. Category 2 relates to testing procedures and protocols. Category 3 addresses the likely management challenges local governments will face.

Category 1: Policies and Procedures

• Review the current policies pertaining to controlled substances—such drugs as hydrocodone, antidepressants, cold medicines, and sleep inhibitors. Failing to differentiate the use of medical marijuana from other prescription drugs that are commonly used without oversight will invite labor challenges and litigation.
• Require medical marijuana prescription holders to be examined by the employer’s contract medical review officer (MRO). The duties and responsibilities of this position should be specifically defined by the employer. Without this policy requirement that even a small city can contract for, any licensed physician can prescribe marijuana in those states that have approved medical marijuana.
• Make sure the policies are not in conflict with state antidiscrimination statutes. While federal courts have held that the Americans with Disabilities Act (ADA) does not require employers to permit marijuana use to accommodate a disability, state law may do so.
• Clarify whether or not physician-prescribed topical applicants, capsules, suppositories, food, and beverages containing cannabis can be used in the workplace. Can smokeless electronic devices or inhalers be used? Should there be a designated area for such use?
• Require employees to notify human resources in writing that they have been prescribed medical marijuana and how they intend to use it. Human resources (HR) should review usage policies with the applicant, refer the applicant to the organization’s MRO, and notify the chain-of-command with complete confidentiality. The employee’s use of medical marijuana and workplace behavior should be monitored and reviewed formally on a clearly established schedule.
• Establish the protocols for random testing, the type(s) of test to be used, and facilities for the testing event. Employee confidentially and privacy during testing are important elements of the policy and process. Define the testing levels that qualify an employee as being judgment impaired and the review process for appeal.
• List the positions considered safety-sensitive by your organization and specify the employee pools for random testing. The random process needs to be unequivocally fair and absent of any bias. The U.S. Department of Transportation (USDOT) is the best source of information regarding the subject of random testing safety sensitive positions (www.dot.gov/dapc).
• Impose specific disciplinary and second-chance rules that can be applied to the workforce. Unduly strict policies can result in the termination of a solid employee who casually smoked or ingested marijuana off duty days before a random test.
• Consider polices to prevent the increased recreational use of recreational marijuana.The ease with which recreational users can use these products (e.g., smokeless inhalers, edibles, topicals, and beverages) undetected in the workplace has increased significantly. This group of employees, the abusers, will use medical marijuana to game the system.

Category 2: Mandate Specific Testing Guidelines

Developing a legally defendable testing protocol is critical. Detection time differs with the type of testing. Hair follicle testing, for example, can trace marijuana usage as far back as 90 days, with urine testing for a single-use event testing positive for 48 to 72 hours. Currently, there is no way a test can determine when marijuana was used.

USDOT testing thresholds are the best general reference for testing guidelines. 

Category 3: Management Challenges

• Train supervisors to detect the use of unauthorized marijuana. Without an acceptable training curriculum, supervisors will not be able to identify drug use behavior, nor will they be able to withstand challenges from the opposing employment law counsel.
• Require management protocol training for all supervisors. Such sensitive employee information as drug-test results and requests for special needs to accommodate the use of prescribed marijuana, need to be treated confidentially.
• Address how off-duty recreational use of marijuana is treated if its use is permitted by law. Organizations can prohibit the use of alcohol four hours before reporting for duty. What prohibitions are legal and sensible for the use of recreational marijuana off-duty, which can test positive for up to 90 days after its use?
• Recognize organized labor’s interest. It is important to recognize that labor could resist additional oversight policies that will be necessary to manage the employee’s use of medical marijuana. A first-to-the-table strategy by management is a recommended approach for labor negotiations.
• The scope of HR’s oversight involvement will need expansion. Confidential recordkeeping, chain-of-evidence management, management of testing protocols, and disciplinary actions and appeals are but a few of the challenges most HR departments will face, particularly those of smaller jurisdictions.

Managing marijuana in the local government workplace will certainly become more complicated when the federal government drops it from the Controlled Substance Acts Schedule 1 and as states continue to approve the use of medical and recreational marijuana. The core challenge will be getting ahead of the curve by drafting comprehensive drug policies so that the worker and the workplace are protected.

Drug and Alcohol Policy Red Flags

The evolution of marijuana as a legitimate medicine requires careful review of public sector drug and alcohol policies. The good news is that the policy modifications necessary to deal with the changing laws associated with medical marijuana are relatively simple.

The bad news is that many of the policies used by local government organizations require extensive recalibration to reduce the threats of adverse litigation, organizational confusion, administrative embarrassment, unfavorable publicity, unnecessary labor-management conflict, and a loss of community confidence.

One way to quickly determine if your organization’s existing drug and alcohol policy may need modification is if the answers to any of these questions is “no.”

• Is the policy in compliance with USDOT regulations? USDOT is the gold standard for testing thresholds and processes. Information regarding USDOT regulations can be found at www.dot.gov/dapc.
• Are the drug-testing procedures clearly defined? Such commonly used policy terms as testing site, testing facility, and drug test lack the specificity needed to assure the accuracy and reliability of the techniques, equipment, and laboratory facilities used in the testing.
• Does the existing policy specifically identify the types of drugs to be tested? Policies use such ambiguous references as illegal drugs, non-prescribed controlled substances, and mind-altering substances rather than specific identification, including marijuana, cocaine, opiates, and propoxyphene.
• Does the policy specifically define what the unacceptable test thresholds are? Such terms as testing positive and positive laboratory results may leave the decision of what is acceptable or unacceptable outside the organization’s control.
• Does the policy identify what positions are safety sensitive? A core requirement of any drug and alcohol program is the identification of those positions the organization identifies as safety sensitive.
• Is the definition of reasonable suspicion consistent with applicable law? Reasonable suspicion is when a trained supervisor has a distinct belief based on specific, contemporaneous, and articulable observations of an employee, that he or she poses a threat to themselves or safety of other because of drugs. The definition of reasonable suspicion must support the legal requirements for further investigation on some factual foundation.
• Are random testing guidelines clear and specific enough to stand legal challenge? Pool size for random testing, what positions are in the pool, frequency of testing, and the random selection process necessary for total objectivity are some of the elements of policy inclusion.

If the answer to these red flag questions is “no,” then the drug and alcohol policy needs to be tightened up. My reading of more than 100 current municipal drug policies leads me to conclude that if the above issues aren’t sufficiently specific and comprehensive, then there are most likely additional deficiencies of import that are problematic and risk inducing.

Is there, for example, a clear definition of what constitutes a failure to submit to a mandated drug test, and what official is responsible for recordkeeping confidentiality and the chain of evidence? What about off-duty use? What are the return-to-work options and requirements and fitness-for-duty testing? How often and when can follow-up testing occur?

William Kirchhoff is a municipal adviser, Coronado, California, who served as a city manager for 30 years with five communities (billkirchhoff@yahoo.com).