This feature is part of ‘The Dotted Line’ series, which takes an in-depth look at the complex legal landscape of the construction industry. To view the entire series, click here.
On December 2, the US Drug Enforcement Agency will hold a hearing on whether to reclassify marijuana as a Schedule III drug. This would remove it from schedule I, which includes heroin, LSD and ecstasy, and relist it along with Tylenol with codeine and anabolic steroids.
The proposed downgrade is part of a broader trend of more lenient marijuana regulation in the U.S. Now there is only four states remain – Idaho, Kansas, South Carolina and Wyoming, where any form of marijuana use is still against the law, according to Houston-based employee screening and drug testing firm DISA Global Solutions.
Trent Courtney
Courtesy of Adams and Reese LLP
“Two years from now, I’d be surprised if we weren’t 100 percent legal,” said attorney Trent Cotney, partner and co-leader of the construction team in Adams & Reese’s Tampa office. Florida, specializing in cannabis. regulation and drug testing of construction employees. “It goes so fast.”
States’ progress toward decriminalizing marijuana has accelerated since 2012, when Colorado and Washington state simultaneously legalized recreational use. But the drug remains illegal at the federal level, and even if the DEA’s proposed rule change wins approval, it would only be available for medical use.
The changing legal landscape combined with testing requirements in some federal contracts have greatly complicated construction employers’ approaches to pre-employment, on-the-job and post-incident cannabis testing. especially in states with laws that protect marijuana off-duty workers. to use
For example, in New York, employers cannot test workers for marijuana either during the hiring process or once they are on the job. And where the tests are still legal, the widely used urine and hair tests have other problems, as they don’t detect actual impairment, only traces of cannabis that can remain present for days or weeks after consumption when a person is completely sober .
In an industry where an impaired worker on the job could endanger his life and the lives of others, these developments have left construction employers in a difficult position.
Kathryn Russo
Courtesy of Jackson Lewis
“In high-risk industries like construction, it’s a challenge for employers to figure out what to do to keep the workplace safe, but still comply with all these laws that protect the use of marijuana while the person is off duty,” said the lawyer. Kathryn Russo, director of Jackson Lewis’ Long Island, New York office, which focuses on workplace drug and alcohol testing in compliance with federal, state and local laws.
Where State and Federal Laws Intersect
Further complicating the matter are provisions in construction contracts on federally funded jobs that may require drug testing of employees, including marijuana, and drug-free workplace discounts from insurers that do the same, as well as how these requirements interact with state law.
In New York, for example, the same law that protects off-duty marijuana use by employees has language that allows employers to test for marijuana if required by federal regulations or another federal mandate, such as a contract with a federal agency.
Given this complexity, it is crucial that construction contractors understand the laws in which they work.
“It depends on what state we’re talking about,” Russo said.
Take California, where recreational use is legal. Two laws that took effect this year prohibit employers from asking workers about cannabis use outside of work or using hair or urine tests to hire, fire or penalize workers. But that aspect of the test doesn’t apply to workers in the building and construction industry, who can still be legally required to submit to marijuana use testing.
For contractors looking for a state-by-state breakdown of these types of laws, Atlanta-based law firm Troutman Pepper has done a comprehensive analysis of marijuana testing and employment policies by state.
When, how and why to test
This “yes, but” aspect of marijuana laws has led many construction companies to completely outsource this area of human resources to companies that specialize in pre-employment and on-call drug screening.
“A lot of contractors are throwing up their hands and pulling everything out,” Cotney said.
Others have stopped testing for marijuana in the first place, especially to make hiring decisions. This is especially true in construction, which faces an endemic shortage of skilled workers and has been trying to remove, rather than impose, barriers to employment.
“Many employers are removing marijuana from their pre-employment testing panel,” Russo said. “Employers often have a hard time recruiting qualified applicants if they’re going to be fired because of marijuana use.”
In that environment, advocates say many construction companies are only testing employees for marijuana when required, for example, because of a provision in a federal contract, or after the incident as dictated by regulations of insurance
In these cases, since urine and hair tests do not positively indicate active impairment, blood tests may be a more accurate method. There is also a breathalyzer test available more recently from Hound Labs of Fremont, Calif., that aims to detect cannabis use within hours.
This type of testing is promising, Russo said, but so far has not been widely adopted by the industry.
“The breathalyzer manufacturer says the detection window is about two to three hours,” Russo said. “If this turns out to be accurate, I think it would be attractive to many employers.”
How to keep workplaces safe
Ultimately, even in states where employers cannot test employees for marijuana use, workplace supervisors are still required by OSHA’s General Duties Clause to maintain a safe workplace for to all workers, an aspect that is usually indicated in the construction contract.
Both Cotney and Russo noted that if a supervisor observes evidence of a worker’s possible impairment (bloodshot eyes, slurred speech, unsteady movements) that could be due to recent substance use, including marijuana, they have legal coverage to send this worker home.
“Regardless of whether it’s legal or not, if it impairs your ability to perform your job duties, safety trumps that any day of the week,” Cotney said.
Supervisors should be trained to identify these types of situations, and any intervention should be done in the presence of at least one other person, Cotney said. Any further evidence should adhere to a published policy manual which workers should also be required to sign when employed as part of the contract.
As for other safety aspects that general contractors include in contracts with their subcontractors, Cotney noted that the best practice is for the subcontractor to be responsible for following all applicable federal and state safety regulations. Otherwise, if the contractor prohibits specific safety actions, such as testing for marijuana use, the employer could be found to be in control of the site in terms of safety, which would open it up to more liability. .
“The rules are constantly changing, if they weren’t I wouldn’t have a job,” Cotney said. Rather than prescribing specific actions for subcontractors, “it’s better to say, ‘You have to comply with the law, you have to figure it out,’ and take it from there,” Cotney said.
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