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Marijuana in the Workplace?

Marijuana in the workplace can send employers in circles. Marijuana has two groups: medical marijuana and recreational marijuana. Both are illegal for federal purposes, but many states have decriminalized one or both.

Marijuana is much like alcohol. If it is legal in your state, people can use it on their own time, as long as it doesn't affect workplace performance. Like alcohol, the problem is that the effects last for 48 hours, and the drug is still found in the bloodstream up to 5 days later. So it is difficult, if not possible, to use the drug and remain "clean" for a drug-test.

The laws protect employers, because they can continue to have a Drug-Free policy and can discipline any worker who is impaired or possesses (medical or recreational) marijuana at work.

Protection for employees is a bit more confusing. Employers do not have to make ADA (American Disabilities Act) accommodations for people using medical marijuana. However, medical marijuana is covered under HIPAA laws, and it is not legal for employers to ask employees (or potential employees) about their medical situation. Recreational marijuana is like smoking: Employers cannot ask applicants or employees if they smoke. They CAN have a no-smoking policy.

So,the bottom line is that employers have control over actions that affect the workplace.

All employers should have a workplace drug policy, distribute it to all employees, and consistently enforce it. Specifically, your drug policy should include any drug, legal or otherwise, that affects the workplace.

Opioid Epidemic: What Employers Should Do

Opioid addiction has been declared a national public health emergency. More than 2.6 million Americans have been prescribed opioids or obtained them from friends or others and are now addicted.

Since the mid 1990's opioids have been commonly prescribed for pain. The drug companies understated their addictive potential and they became one of the most prescribed drugs in the US. Because of lack of insurance or to reduce medical costs, people have obtained opioids from others, rather than seeing a doctor for their pain.

In addition to the addiction, use of opioids have resulted in drug overdoses (and death) and the use of other illegal drugs, such as heroin.

Handling opioid abuse is tricky for employers, because the original problem usually started with a legitimate prescription, but escalated to an addiction. Ensuring workplace safety should always be your highest priority. However, "no-tolerance" policies which fire employees who flunk a drug test can cause employees to hide their problem rather than seek help. Some recommendations for businesses ask employers to "talk to employees about alternative therapies" - which can easily cross the line violating patient privacy. It seems more prudent to make sure your health insurance covers alternative therapies and addiction recovery, and to talk with your insurance provider to learn about the methods they are using to reduce opioid addiction.

The National Safety Council has created the Prescription Drug Employer Kit to help businesses respond to this crisis. It has information to:

Opioid addiction has special challenges for businesses with 15 or more employees, because using valid prescriptions and recovering from an addiction are generally covered by the Americans Disabilities Act. This means that employers need to make "reasonable" accommodations to meet their needs, such as allowing time to go to addiction treatment programs. Reasonable accommodations do not include overlooking the clear dangers of using drugs while at the workplace.

Here is an article with more information on ADA and opioids.

Here are signs that someone is abusing opioids:

  1. Physical signs:
    • Noticeable elation/euphoria.
    • Marked sedation/drowsiness.
    • Confusion.
    • Constricted pupils.
    • Slowed breathing.
    • Intermittent nodding off, or loss of consciousness.
    • Constipation.

  2. Other signs of opiate abuse include:
    • Doctor shopping (getting multiple prescriptions from different doctors).
    • Shifting or dramatically changing moods.
    • Extra pill bottles turning up in the trash.
    • Social withdrawal/isolation.
    • Sudden financial problems.

  3. Withdrawal symptoms can mimic flu symptoms and include:
Ergonomic and Wellness Resources That You Can Send to Your employees

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Affordable Care Act: Requirement to Notify Employees of Health Care Options

Full text Patient Protection and Affordable Care Act (Health Care Bill)

Beginning 2010: If you have 25 or fewer full-time equivalent employees, who earn $50,000 or less annually, and you provide them health care coverage, you can get a tax credit up to 50% of your contribution to their health care costs.

  • This 50% tax credit is reduced if you have more than 10 employees or their average wages are more than $20,000 per year.
  • The tax credit does not apply to owners or their dependents
  • Non-profits receive 35% instead of 50% and their credit is taken against payroll tax rather than income tax.
  • Employers must pay at least 50% of the premium. The tax deduction is on the employer's contribution only.
  • For the full text, visit pages 120 to 124 in the Health Care Bill.

2011: Small businesses with under 100 workers that institute wellness programs can receive a government grant for five years to partially offset their costs.

  • The amount of the grant has not been determined.
  • Wellness programs must have health education, preventive screenings, health risk assessments, ways to encourage employee participation, initiatives to change unhealthy behavior, and a supportive work environment.
  • For the full text, visit pages 859 to 860 in the Health Care Bill

2011: Health savings accounts (HSAs) for workers will be replaced by a Simple Cafeteria Plan which will be available to small businesses with 100 or fewer employees.

  • Employers are not required to offer a simple cafeteria plan; it is only an option
  • Employer contributions to the cafeteria plan must be at least 2% of the employees' compensation.
  • The simple cafeteria plan does not have to be offered to employees with less than one year service
  • For the full text, visit pages 756 to 758 in the Health Care Bill

2012: REPEALED: All businesses will have to issue 1099-M forms for any business that they have paid $600 or more for services and $5,000 or more for products.

  • Previously, businesses did NOT have to issue 1099-M forms for corporations. This means that businesses must obtain the federal EIN number for all their vendors.
  • For the full information, see page 737 in the Health Care Bill.

2013: The employee portion of Medicare tax for high income earners -including business owners paying Social Security self-employment tax - will increase to 2.35% of wages above $200,000 ($250,000 if married). The employer portion of Medicare tax stays at 1.45%. (see pages 752-3, amended by page 902) Sole proprietors, partnerships and LLC business owners pay Social Security self-employment tax.

2014: State-based insurance exchanges will be available to small businesses and individuals. Businesses with 50 or more employees will be required to provide health coverage. Individuals with income between 100% and 400% of the federal poverty line will be eligible for premium assistance, which will be paid directly to the insurers.

  • For the full text, visit pages 171 to 173 in the Health Care Bill
  • Information on requirements for businesses with 50 or more employees begins on page 134.
  • Information on premium assistance begins on page 95.
Develop a Drug-Free Workplace Program

44% of illicit drug users work for small companies. The US Department of Health and Human Services has developed a free Drug-Free Workplace Kit for employers. Click here to go to the Drug-Free Workplace Kit.

Drug-Free Workplace Employee Education

The US Department of Labor created a drug-free workplace training module for employees. Click here to go to the training.

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