Marijuana in Manufacturing

By Jodi Slavik, Employment Attorney & Strategic Services Director with Vigilant

The manufacturing labor shortage has become more acute with the legalization of marijuana. Long-standing, highly-regarded companies are struggling to find—and keep—qualified workers able to pass a drug test and work physically demanding jobs. This post tackles the question: should manufacturers relax testing for marijuana? Given legal liability, shortfalls in current testing, and production demands, it is not an easy question to answer. We’ll review current laws, testing challenges, and trends in the manufacturing community. And finally, what are the top five “must-do’s” for Oregon manufacturing companies, including what to have (and not have) in a drug policy, when to train supervisors, and how to get buy-in from employees.

Manufacturers in the Pacific Northwest are facing a new crisis. Until recently, hip tech firms and Mom and Dad’s couch were the biggest recruiting threats to the manufacturing industry. Although many Oregon manufacturing companies are adapting with flex schedules, leadership opportunities, and skilled cross-training, they have run headlong into a new problem: legalized marijuana.

Once deemed secretive and illicit, marijuana’s increasing social acceptance is resulting in more workers testing positive. Quest Diagnostics, one of the nation’s largest workplace testing providers, released a study in September 2016, noting that marijuana positivity increased 26% since 2011, with pot showing up in almost half of all positive drug tests. Manufacturers, in desperate need of skilled workers, are now wondering if they should scale back testing or remove marijuana from the testing panel.

Why Test?

There are several compelling arguments for strict drug testing in manufacturing environments. First, companies who care about their workers’ safety can reduce the risk of injuries by excluding people from the work environment who test positive for drugs. Our members tell us that many workers in manufacturing jobs would rather take a test than take a chance on working next to someone who may be high.

Companies are also legally obligated by federal and state law to maintain a safe work environment—especially crucial in manufacturing environments filled with high-powered, lethal machinery. Slowed thinking, coordination, or reaction time could result in an accident, severe injury, or even death. Not only could this cripple company morale and production, but it could trigger expensive, time-consuming claims of negligent hiring or retention.

Another reason not to discard drug testing is if you have or want to do business with the federal government. Companies with federal contracts are legally obligated to meet Drug Free Workplace standards, including having a formal drug-free workplace policy. In today’s ultra-competitive business climate, many manufacturers can’t afford to lose the federal government as a client (or potential client). Finally, if a company elects to stop testing or alter its test, word gets around. No one wants to be the employer where all the habitual users apply.

The Law is on Your Side

After Oregonians voted to legalize recreational marijuana in 2015, many Oregon businesses wondered if they had to allow some use of marijuana. They do not. In Emerald Steel Fabricators v. BOLI (2010), the Oregon Supreme Court considered whether a drill press operator could be fired for telling his employer, prior to taking a drug test, that he used marijuana outside of work to treat a medical condition. The Court sided with Emerald Steel, holding that private employers are not required to accommodate medical marijuana use. Similar decisions have been issued in neighboring states that allow medical medical marijuana, including Washington, Montana, and California, as well as by the federal 9th Circuit Court of Appeals. And if the courts are holding the line against medicinal pot in workplace discrimination cases, then they certainly are holding the line against recreational use.

The Pot-Holes of Drug Testing

So how can companies know–really know–if employees are high at work? They can’t. Unlike the precision of blood alcohol testing, which correlates blood alcohol level to time of consumption, marijuana testing relies on capturing the level of THC—the metabolite in marijuana—in urine, blood, saliva or hair. Unlike other street drugs with a detection time of hours to a few days, THC can remain in the body for weeks. Thus, an employee who smoked at a weekend party and is randomly selected for a test two weeks later could test positive.

Not only is testing difficult because of the inability to pinpoint time of use, it also is unable to accurately assess how much a person can smoke and still safely operate a forklift. Marijuana impairment is fully dependent on the size, weight, and health of the user, as well as when, how, and what the person ingested. This means impairment is assumed–not guaranteed–based on detectable levels in blood, urine, saliva, and/or hair. The detectable level limits (above which impairment is assumed) vary widely: Washington State driving impairment is assumed at 5 nanograms per milliliter; Federal Department of Transportation impairment is 50 nanograms per milliliter for an initial test and 15 for a confirmatory test. Oregon hasn’t established a numerical level for measuring driver impairment. Testing levels can reach as high as 64,000 nanograms.

The hope for marijuana testing is technology. Researchers at Washington State University and private labs in California and Colorado are racing to develop accurate marijuana breathalyzers. However, the variables are extremely difficult to manage, and an accurate, affordable breathalyzer is still several years out. In the meantime, manufacturers must rely on traditional methods.

Five Things To Do Now

  • Check your culture

    Before you can effectively get buy-in to a drug and alcohol policy, your company needs to be walking its talk. Does your company say one thing and do another? For example, do you only test production employees and not corporate or administrative employees? Do you let your sales reps slide when they get loaded at out-of-state conferences? You get to decide what your tolerance level is, but employees are less likely to buy in to a strict policy if they think that the “suits” aren’t equally responsible. Similarly, support supervisors who take people off the line for reasonable suspicion testing. They must know that company leadership supports prioritizing safety. Being willing to sacrifice some production efficiency in favor of safety speaks volumes about your culture.

  • Write a clear, legally compliant policy

    Once your culture is in line, dust off your drug and alcohol policy to see if the terms are accurate, relevant, and legal. A vague policy that prohibits “impairment” or “working under the influence” is difficult to enforce. Instead, have “zero-tolerance for detectable levels.” Also, include details about the types of testing, consequences for not testing or positive tests, a confirmation and appeal procedure, and last chance opportunities. If you have post-accident testing, also be sure to have an attorney review your language to ensure that it complies with recent federal Occupational Safety and Health Administration guidance.

  • Communicate early and have a transparent process

    From the get-go, be clear about announcing your company’s policy on marijuana. If you do pre-employment testing, include it in your job application and post on your company entrance. Even more important is making your testing process as transparent as possible so employees know that the process is fair and equal. Invite your testing provider onsite and allow your employees to ask questions about the randomizer and the testing process.

  • Double-down on supervisor training

    Supervisors are the eyes and ears of your company. They need to be adequately trained on how to spot signs of impairment (behavior, appearance, and performance) and how to confront an employee who should be tested. Take your training a step further and develop supervisor communication skills, arming them to have difficult conversations and hold their reports accountable.

  • Utilize your resources

    Employee Assistance Plans (EAPs) can be an affordable, beneficial way to assist employees who may be dealing with emotional issues or addictions, as well as an effective tool in a last chance employment situation. Most testing agencies offer on-site impairment training. Membership associations such as Vigilant can advise on the law, provide training for supervisors, and offer solutions from other companies in the same boat.

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