Testing for Opioids and Cannabis in the Workplace: What Should Employers Know?

Marina owners and managers are often challenged with finding great employees. Combining the seasonality of the business along with an aging workforce, many marinas simply have a hard time filling positions. Throw in the fact that many states have legalized recreational drugs, marina owners and managers are further challenged. However, it is worth noting the challenge is not exclusive to the marine industry or one geographical area of the country. Most every industry is dealing with the same exact challenge.

Rise of the Opioids Crisis
As many as 50,000 Americans may have died last year alone of opioid-related overdose. A recent study showed 2 million Americans had a substance abuse disorder involving prescription pain relievers, while drug overdose is now the leading cause of death of Americans under the age of 50. Abuse of the drug has had tragic consequences across the nation, ravaging communities and tearing apart families.

Opioids may be found in any medicine cabinet. This group of drugs includes the regularly prescribed painkillers oxycodone, hydrocodone, morphine and fentanyl. These drugs interact with opioid reactors on nerve centers in the brain to create a pleasurable experience and relieve pain. Due to the relief they experience, consumers of these drugs often become dependent upon them. Once addicted, individuals may turn to heroin, which, although illegal, is often a cheaper and more accessible than opioids. In fact, approximately four in five heroin addicts developed their addictions after taking prescription painkillers.

Employer’s Role
Employees may be prescribed opioids to relieve pain following a workplace injury, which could begin a path to dependency. Opioid dependency often leads to drowsiness, shifting moods, anxiety and depression. An employee with an opioid addiction may struggle to maintain regular attendance, achieve quality goals, or pose a safety hazard to him or herself and coworkers.

Addiction to these drugs usually also causes financial issues because the addict is in constant search for a fix. This could lead to cases of workplace theft or embezzlement.

Employers should be aware of issues with each employee’s life (e.g., change in behavior, missing work, etc.). The employee’s addiction may have begun at work (e.g., taking pain medication for the first time after an injury/workers’ compensation claim). Unfortunately, workplaces are often a marketplace for prescription opioids (originally obtained with a prescription).

Marijuana in the Workplace
Currently 33 states and the District of Columbia have legalized medical marijuana. Eleven states and the District of Columbia have legalized recreational marijuana. Each state law varies regarding employer obligations and worker rights. While a handful of states have legalized recreational marijuana, possession, use or distribution is still a violation of federal law.

New laws and precedent from court cases are ongoing. As of November, 2019, an additional nine states could potentially legalize recreational marijuana in 2020. In many states, courts have ruled favorably for employers stating that they did not have to accommodate medical marijuana use. However, a case in Massachusetts stated that the employee may be entitled to reasonable accommodations (Barbuto vs. Advantage Sales and Marketing).

OSHA’s Drug Testing Rule (December 1, 2016)
The Occupational Safety and Health Administration (OSHA) has stated that a blanket post-accident drug testing policy may be improper. Drug testing can be conducted post-accident if:
• the employer has a reasonable basis for concluding that drug or alcohol use could have contributed to the injury or illness;
• the test will determine if the impairment existed at the time of the accident/injury (if available); or
• State law allows such testing.

OSHA has ruled drug testing is appropriate when the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore, the result of the drug test could provide insight into why the injury or illness occurred). In the event that multiple employees are involved or are witness to an accident, every employee involved should be tested. Failing to be consistent in the drug testing policy can create exposure to claims of unfair labor practices.

Final Thoughts
At a minimum, a good drug and alcohol policy should contain the several provisions.

The policy should inform employees about why and when testing may occur, and what may happen if the test is failed.

The policy should clearly define what substances are prohibited. The definition of prohibited substances should include illegal drugs and legal drugs that are abused or used without a prescription.

Working while under the influence of drugs or alcohol should be prohibited. The policy should prohibit possession, manufacture, distribution, dispensation, transfer and sale of prohibited substances while on company premises, on company time, or while in company vehicles.

The policy should address the failure to cooperate in company investigations of substance abuse.

The policy should advise the employees that the employer reserves the right to search lockers, desks, and other company property, and any personal property or personal vehicles on company premises. An employer may want to reserve the right to conduct personal searches, but these searches entail legal risks and should be conducted with caution.
If assistance is needed developing a drug testing policy, consult a labor and employment attorney.

Robert Smith is executive director of Fisher Phillips Safety Solutions. He can be reached at rsmith@FPSafetySolutions.com or 404/240-4147.