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As More States Legalize Marijuana, Contradictions Remain

There is a lot of momentum around marijuana legalization. Five states had marijuana initiatives on their 2020 election ballots: recreational marijuana use in Arizona, Montana and New Jersey, medicinal marijuana use in Mississippi and both recreational and medicinal use in South Dakota. These initiatives passed in every state. In December, the U.S. House of Representatives passed two pieces of marijuana legislation: the MORE Act, which decriminalizes cannabis and clears the way to erase non-violent federal marijuana convictions, and legislation to make marijuana research easier, even though marijuana remains illegal at the federal level.

During 2020, we’ve seen a trend towards limiting pre-employment marijuana screening, including in Nevada and New York City (with exceptions for safety-sensitive positions and jobs regulated by federal programs that require drug testing). According to multiple polls, a growing majority of Americans believe recreational marijuana should be legal.

Despite these new laws and growing support, marijuana is still illegal at the federal level and is classified as a Schedule I drug under the Controlled Substances Act. This means the government believes marijuana has no medical use and has a high potential for abuse. Cultivating, distributing and possessing marijuana violates federal drug laws.

This contrast makes marijuana use a challenging issue, especially in places where state law says one thing and a workplace policy says something else.

Health and Safety Concerns

Regardless of its legal status, health and safety concerns still exist on construction jobsites and in other workplace settings due to marijuana’s active ingredient, THC. THC’s effects include sedation, disorientation, impaired judgment, lack of concentration and slowed fine motor skills – all of which can contribute to delayed decision-making, impaired learning and memory and attention deficits.

Marijuana Use and Impairment

Marijuana is the most frequently used illicit drug in the U.S. and the drug most often detected in workplace drug testing. Currently, one of the biggest challenges with drug testing is it’s nearly impossible to assess impairment due to marijauna use. A breath or saliva test can tell on the spot how impaired an employee is due to alcohol use; the same test doesn’t yet exist for marijuana impairment.

Additionally, the level of THC in marijuana still varies widely, while the amount of alcohol in a drink is highly standardized. Marijuana users, whether medical or recreational, have less information about how much THC they are consuming. This makes marijuana testing all the more important, as users may not realize how impaired they are or how long their “high” will last.

Steps Employers Can Take to Help Keep Jobsites Safe

  • Share and communicate your drug-free workplace program and policy information clearly to employees, including the consequences of violating the policy. Employees may believe that if marijuana is legal in their state, they are free to use it without consequence.
  • Train supervisors to identify signs and symptoms of being under the influence of drugs or alcohol. This can be accomplished through comprehensive reasonable suspicion training that teaches supervisors to recognize and identify unsafe behavior, know how to address it and make a referral to a drug test or assistance as appropriate. The goal is not to diagnose someone with a drug problem or accuse someone of having a drug problem; it is to identify and address unsafe behavior to avoid potential accidents, injuries and even death.
  • Increase education to help workers understand the health and safety effects, impacts and risks of marijuana use – both short and long-term.
  • Evaluate which drug-testing specimens are used in your drug-free workplace policy. Oral fluid (saliva) is the most effective for detecting recent marijuana use. The detection window for oral fluid drug testing is generally between five and 48 hours after use.
  • Include random and reasonable suspicion drug testing in your policy to help detect recent use.
  • Consider not using a zero-tolerance drug-free workplace policy where possible. Non-zero tolerance gives workers who test positive an opportunity for counseling or treatment, if appropriate. Many employers rely on Employee Assistance Programs (EAPs) and other resources to help employees with addiction issues take a break from the workplace, treat their addiction and return to work.


LIUNA signatory contractors can order Answering Your Questions on Why Using Marijuana Could Cost You Your Job, Marijuana and the Drug-Free Workplace and the Fund’s Marijuana toolbox talk from our online Publications Catalogue for more information. The Fund’s Health Promotion Division is also available to review and provide guidance on drug-free workplace program language and policies.

[Jamie Becker is the LHSFNA’s Director of Health Promotion.]

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