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HOW HIGH IS TOO HIGH?
When your worker can swing by his favorite pot shop on the way into work, who’s to say he’s not taking a couple of tokes in the car before punching in?
Generally, a worker who wasn’t smoking before won’t suddenly become an avid user just because marijuana is legalized in their state. However, legalization and cultural acceptance has many employers worried and wondering about their workers’ marijuana use, and whether they’re coming to work impaired.
Now that recreational marijuana is legalized in various states, with some states requiring employers to consider reasonable accommodation for medical marijuana cards, we began reviewing stats to get a better understanding overall. We considered statistics involving American workers who use cannabis and simultaneously, the stats on how law enforcement answer the question of what level of consumption is acceptable when faced with an impaired driver. The following observations may assist your company in making decisions moving forward.
MARIJUANA USAGE MAY RISE WITH LEGALIZATION
In 2014, the Substance Abuse and Mental Health Association released data it compiled showing more than 20 million Americans – just less than 8% of the population – said they smoke pot monthly or more frequently. More recent data that reflects a post-legalization landscape is still being compiled, but with expanded access, numbers are only expected to increase.
One thing piquing researchers’ interest is whether marijuana use rates will be greater in states where users can buy buds and cannabis oils legally. In a survey conducted at the end of 2017, 28% of Nevada residents said they purchased marijuana in the previous six months, the majority of which were males in their 20s and 30s, as reported by The Nevada Independent.
A recent study in Colorado showed that about 15% of all workers use cannabis. Rates were highest among workers in the hotel, restaurant and entertainment industries, with a 30% usage rate. Among transportation workers, the number was about 10%, and even lower in other fields that conduct regular drug testing. Regardless of the state where a business operates, routine drug testing greatly deters usage among employees.
WHAT IS THC AND HOW IS IT DETECTED?
THC, whose scientific name is delta(9) – Tetrahydrocannabinol, is one of hundreds of cannabinoids found only in the cannibis plant. THC is the one specifically responsible for the psychoative “high” users experience.
Despite cannibis being one of the world’s oldest drugs, THC was only isolated from within the plant in 1964 by Israeli chemist Raphael Mechoulam, who worked with a team to identify THC in Lebanese hashish. His work led to the future identification of metabolites, the products of THC as it is broken down by the body. The metabolites derived from THC affect the body differently when marijuana is smoked vs. ingested. This easy-to-understand infographic describes the process.
Besides being present in the cannabis plant, THC is also available in synthetic forms such as brand-name products, Marinol and Cesamet, which are often used in medicinal applications.
WHAT’S ACCEPTABLE UNDER THE LAW?
Such wide acceptance and use of cannabis may encourage workers to think it is “no big deal” to show up high. After all, you are now permitted to buy it and smoke it, so perhaps it makes sense that you should be allowed to do anything while under the influence of marijuana.
Like other legal mind-altering substances including alcohol and prescribed medications, the use of cannabis in states where it’s been decriminalized remains restricted in some ways. It’s not legal to smoke pot in public or while in a car. Drivers can be charged for driving while intoxicated if they operate a vehicle while high on drugs or alcohol, legal or otherwise.
But wait – how high is too high to drive?
According to Nevada law, a driver can be charged if a “urine sample shows at least 10 nanograms of marijuana per milliliter (or 15 nanograms per milliliter of marijuana metabolite) or the blood test shows two nanograms of marijuana per milliliter (or five nanograms per milliliter of marijuana metabolite).”
The law in Colorado reflects similar allowable metabolite amounts, but the statute also grants law enforcement the power to determine a driver’s intoxication based on “observed impairment.”
Officials in Canada released officially acceptable drug concentration levels for driving in 2017. However, they admitted the draft guidance doesn’t include information about acceptable marijuana levels. Officials explained the lack of recommendation in the following analysis statement released alongside the draft.
“It should be noted that THC is a more complex molecule than alcohol, and the science is unable to provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or before the proposed levels would be exceeded.” This is the very issue we are dealing with as employers. What quantifies impairment?
According to the Governors Highway Safety Administration, 18 states have zero tolerance or non-zero per se laws for marijuana. Per se laws specify the level of a substance that is allowable in a driver’s blood.
- 9 states have zero tolerance for THC or a metabolite
- 3 states have zero tolerance for THC but no restriction on metabolites
- 5 states have specific per se limits for THC
- 1 state (Colorado) has a reasonable inference law for THC
The GHSA offers a PDF list of state marijuana-related laws, including laws related to driving.
SO WHAT DOES THIS MEAN FOR EMPLOYERS?
With government officials conceding the difficulty in determining a scientific measure for marijuana impairment, law enforcement and employers alike must rely on informed observations to determine whether someone is driving or working while impaired by marijuana.
In short, most experts agree that no amount of marijuana intoxication is safe for activities requiring attention and concentration. A company’s drug and alcohol policy is an employer’s first line of defense for handling incidents where there is reason to believe a worker is impaired by cannabis. With a clearly detailed policy, employers have a consistent, written process to follow every time, regardless of who is involved.
As stated earlier, some states including Nevada, have laws in place that provide for reasonable accommodation in the workplace concerning medical marijuana use. Employers must understand their obligation under the law to make informed decisions and minimize liability.