Employers, especially those in dangerous professions, are keeping a close eye on the legislative debate in Minnesota over whether or not to legalize recreational marijuana. The construction industry is one of these sectors that has long taken pride in its record of accident avoidance.
On February 20th, a voice vote passed through the House Health Finance and Policy Committee to support recreational marijuana legislation filed by Representative Zack Stephenson, DFL-Coon Rapids. Senator Lindsey Port (DFL–Burnsville) has introduced a parallel bill in the Senate, and the Health and Human Services Committee has been debating several revisions to the bill.
Clearly, the ultimate shape of the law has not been decided upon. The proposed regulation would “add a new degree of difficulty for businesses,” particularly construction companies, according to Kathy Bray, chief legal officer of Bloomington-based workers comp insurer SFM Mutual Insurance Co.
According to Bray, the absence of standardized methods for determining the extent to which someone has been impaired by cannabis is a key worry for businesses. Because “unlike alcohol,” Bray says, physiological variances in the pace at which individuals metabolize THC make it impossible to develop standards to quantify intoxication.
THC’s persistence in the body begs the question: are you checking for something a person may have consumed a week ago? That’s the million-dollar query. Bray said scientists have yet to find a solution to that problem. According to Bray, “roadblocks have been placed in the way of thorough study” due to the federal government’s continued prohibition of marijuana.
Impairment criteria, as a result, are a hodgepodge of different approaches from different jurisdictions. Bray argued that if marijuana were legalized for recreational use, employers could not discriminate against people based on their cannabis usage outside of the workplace.
Establishing marijuana intoxication as a cause following a workplace accident “is very difficult to achieve, unless we develop a presumptive testing level, as we do with alcohol,” says an expert. In Bray’s opinion, “training to judge impairment” is “going to be very crucial” if human judgment alone is used to determine impairment.
She argued that additional research into the topic was necessary to understand the effects of legalization and plan for their management. Associated General Contractors of Minnesota CEO Tim Worke agrees that if the marijuana measure passes this session, it will create a significant problem, citing the absence of a standardized, legally tested, and validated test for impairment.
“The foundation of our business is a commitment to safety.” Worke is worried that the measure will make it harder for businesses to do post-accident testing. If someone murders two people because they missed a crane and dropped a load, would I have the authority to test that individual for cannabis impairment?
The ability to involve reasonable suspicion is cited as justification for the proposed law. But we’ll have to work out what constitutes reasonable suspicion on our own. That’s why we’re worried.” Worke noted that businesses in other markets have successfully adjusted to comparable laws. As the author puts it, “they have managed their way through; although they are not particularly enamored with the legislation, employers have adapted.”
According to Michael Schecter, general counsel and head of labor relations for AGC-Minnesota, it will be crucial for construction sector employers to establish clear standards on what is and is not acceptable in terms of marijuana use. This is something that is “still being thought out” as part of the legislative process.
David Waytz, a shareholder at Minneapolis law firm Fredrikson & Byron and an employment and labor attorney, said that despite the bill’s “unclear” nature, it should not significantly affect firms’ ability to test “safety-sensitive” personnel for cannabis. Some worry that legalization will increase the demand for workers and drive up wages. But, Waytz has not observed this in his professional experience.
He emphasized that the bill as currently drafted would not mandate cannabis testing for employers unless such testing was required by a federal contract directly relevant to the position being filled. If corporations were not required to test for cannabis, they might decide not to.
Waytz said that the measure as a whole is “simply vague” with regard to other, testing-related parts, which is to be expected for a bill currently making its way through parliamentary committees. Waytz mentioned that the term “safety-sensitive” worker already has a definition: someone who holds a position in which the impairment from drugs or alcohol could endanger the health and safety of others.
As for his clients, he says, “You need to evaluate how much you worry about cannabis consumption in the workplace; it’s clearly a safety problem for businesses like construction, manufacturing, and health care (among others).” “If you don’t want to worry about cannabis use, you don’t have to test for it” for employers in other fields.
Across the board, Waytz has seen a movement toward less cannabis testing among his clientele. We advise companies to prioritize worker safety and productivity rather than focusing on whether or not an employee will ultimately test positive for drugs due to the numerous uncertainties in the law and the state of the science. But, businesses should keep in mind that testing for virtually any other substance is still possible.
