The effort to legalize recreational marijuana in Minnesota currently under consideration by the state Legislature is being closely watched by employers, particularly in industries where workplace injuries are a prominent concern. One of those is the construction industry, which has traditionally prided itself on preventing mishaps that cause injury.
On Feb. 20, the House Health Finance and Policy Committee approved the recreational marijuana legislation introduced by Rep. Zack Stephenson, DFL-Coon Rapids, in a voice vote. In the Senate, the Health and Human Services Committee took up a companion bill sponsored by Sen. Lindsey Port, DFL-Burnsville, and has been debating several amendments.
Obviously, the bill’s final form is yet to be determined. But, according to Kathy Bray, chief legal officer for Bloomington-based workers comp insurer SFM Mutual Insurance Co., the proposed law would “create a new level of complexity for employers,” including construction companies.
One of the major concerns for employers is a lack of uniformly accepted standards for measuring cannabis impairment, Bray said. Developing standards to measure impairment is difficult because of physiological differences between individuals in the rate they metabolize THC, “unlike alcohol,” Bray said. The fact that THC stays in the system “raises an interesting question: are you testing something that someone may have ingested a week ago? That’s the $100,000 question.”
Researchers are still working on that issue, Bray noted. The fact that marijuana is still illegal at the federal level “has placed roadblocks in the way of robust study” of the issue, Bray said. As a result, impairment standards represent a patchwork from state to state.
Legalizing recreational marijuana use would mean employers cannot fire, discipline or refuse to hire someone for using it outside of work, Bray pointed out.
After a workplace accident, establishing marijuana intoxication as a cause “is very difficult to do, unless we develop a presumptive testing level, as we have with alcohol.”
If judging impairment is based solely on human observation, training to assess impairment “is going to be very important,” Bray added.
Much more study of the issue is needed, she said, to learn how to manage the ramifications of legalization, she said.
Tim Worke, CEO of the trade group Associated General Contractors of Minnesota, agrees that if the marijuana bill passes this session, it’s going to present a complicated challenge, citing the lack of a standardized, legally tested and supported test for impairment. “Our industry is built and predicated on safety.”
Worke is concerned the bill could hamper employers’ ability to conduct post-incident testing. “If someone drops a load from a crane and kills two people, do I have the right to test that person for cannabis impairment?”
“The proposed law invokes the ability to [involve] reasonable suspicion. But we are going to have to figure what is out deemed acceptable in determining reasonable suspicion. So we are concerned.”
Companies in other markets seem to have been able to adapt to similar legalization, Worke said. “They have managed their way through; although they are not necessarily enamored with the laws, employers have adapted.”
For employers in the construction industry, it will be essential to have clear policies on what is and is not tolerated in regard to marijuana, said Michael Schecter, general counsel and director of labor relations for AGC-Minnesota. “That is still being figured out” as part of the lawmaking process.
Although the bill in its current form is somewhat “unclear, it should not have a significant impact on companies’ ability to test ‘safety sensitive’ workers for cannabis,” said David Waytz, a shareholder and employment and labor attorney with Minneapolis-based Fredrikson & Byron. Some have suggested that legalization could exacerbate a worker shortage. “But I don’t see that in my practice,” Waytz said.
The proposed bill does not include a requirement that employers test for cannabis – unless a job-related government contract requires it, he said. Otherwise, companies could choose not to test for cannabis.
Overall, the bill is “just unclear” in regard to other, testing-related aspects — not unusual for a bill that is still in the process of working its way through legislative committees, Waytz noted.
The concept of “safety sensitive” employee has already been defined, Waytz pointed out: a position — including management and supervisory roles — in which impairment caused by drugs or alcohol may threaten the health and safety of any person.
His advice to clients: “You need to decide how much you care about cannabis usage in the workplace; it’s certainly a safety concern for industries like construction, manufacturing, health care (among others).” For employers in other industries, “if you don’t want to worry about cannabis use, you don’t have to test for it.”
According to Waytz, “the general trend with my clients across industries has been to limit the amount of cannabis testing.”
Given the scientific and legal complexities, “we counsel employers to focus on safety and job performance, and not necessarily get hung up on whether someone will ultimately test positive for drugs. But companies should remember that they can still test for almost any other drug under the sun.”