Columbus, Ohio — The fact that marijuana is illegal under federal law but approved by a growing number of states for medical or even recreational use is causing companies — including plastics manufacturers — to re-examine their policies, two lawyers said at the Environmental Health and Safety Summit.
One area for manufacturers to watch: post-accident drug testing.
"The legal atmosphere is changing practically on a daily basis. The most important thing you can do is check the states where you are having your employees do drug testing and see what the law says, and go from there," said Vanessa Towarnicky of Steptoe & Johnson. The law firm has more than 300 lawyers licensed in 32 states.
Towarnicky and Nelva Smith addressed the issue of medical marijuana at the health and safety conference, held by the Manufacturers Association for Plastics Processors in Columbus July 18-19.
Employers can prohibit workers from recreational marijuana use, even in states where recreational pot is now legal. They can't come to work high or use on the job. But medical marijuana is a gray area that differs state by state and according to regulations of the U.S. Occupational Safety and Health Administration and Americans with Disabilities Act.
"Marijuana is illegal at the federal level. That notwithstanding, over half the states and the District of Columbia have decriminalized or legalized marijuana, and that's creating a lot of uncertainty for employers and for attorneys, actually, in the court system as well," Towarnicky said.
Automatic drug testing after an industrial accident — and sometimes after a near-miss — is widespread among manufacturers. Although Smith said that OSHA has not yet issued a specific standard on the issue, the lawyer said there could be legal impact from a new OSHA record-keeping requirement, which went into effect about in 2016, that says companies must have an antiretaliatory policy.
"They're questioning post-accident drug testing on that," Smith said.
Before the new rule, companies already could be punished for retaliating against an employee, but that worker had to first file a complaint. Now, OSHA inspectors can look at the anti-retaliation policy on their own, anytime an inspector stops by, and could issue fines of $12,900 for each citation, she said.
OSHA can interpret mandatory post-accident drug testing as a deterrent for employees to report workplace accidents, Smith said.
OSHA guidelines do not impact drug testing for "reasonable suspicion" and random drug tests, she said.
"But they're saying that they're going to presume that if you have blanket or automatic post-accident drug testing that that is considered a deterrent as retaliatory in nature. Because an employee — let's say he was under the influence and gets injured — he doesn't want to report it because he doesn't want to get drug tested, because if he gets drug tested, he's more than likely going to get fired," Smith said.
Like anything else with OSHA, it comes down to the regional office and local investigator, she said, adding, "It's really going to depend on a case-by-case basis."
Smith said companies need to have a clear policy of how to handle post-accident tests. "Testing practices that are punitive or embarrassing will likely deter reporting," she said. "One example they gave is escorting the employee out of the work area, or barring their access to personal belongings or a vehicle." Some companies have a supervisor immediately sweep the person away to a testing facility or a bathroom for a urine test. She suggested taking a close look at similar policies like that can publicly embarrass an employee.
Smith said OSHA won't issue citations if a company is following state law or operating under the guidelines of a workers' compensation program to reduce rates, but companies need to have good documentation and be able to explain their policies.
"I highly recommend documenting," she said.
She also said officials should "think twice" before testing for injuries that are probably not related to drug use.
Drug use does fall under OSHA's "general duty clause," which requires a workplace free of dangerous hazards, she said.
And if someone is high on pot, that creates a hazard in a factory setting with running machinery. But the lawyers noted that, currently, there are no tests for impairment from pot. Blood and hair tests can show marijuana use from weeks earlier, since pot stays in the system a long time.
"You need to make sure your supervisors are trained in what to look for," Smith said. She advised companies look at their drug and alcohol policy and to poll supervisors and lead workers on what they actually do, then update the policy if necessary.
