Making Sense of Marijuana Rules: 8 Questions for Employers

When it comes to marijuana in the US, the times they are a-changing.  The pace of change – and the fact that it’s happening at the state level – is creating challenges for employers. We’ve put together a list of questions to help you discover where policies may need to be updated or rethought. But let’s start with some background on regulatory changes and health-related issues. As a physician, I think it’s important for employers to be aware of the evidence (or lack thereof) for marijuana as medicine as well as its potential for abuse. 

In 2019, 33 states and the District of Columbia have medical marijuana programs that are governed by separate sets of state regulations. The states each list which medical conditions qualify state residents to be registered medical marijuana users. These lists are not identical, and they are also not based on clinical evidence. Marijuana as a medicine has only had limited research funding and as of now there only three drugs that have FDA approval, for limited applications. These drugs are available to people through their PBM formulary. The medical marijuana programs at the state level supply individuals who have registered for treatment through dispensaries or through permission to grow their own plants. These operations do not have FDA oversight.

Some state regulations require employers to accommodate people who are registered for medical marijuana, except for people who need to be drug free in order to comply with safety standards or federal regulations. This patchwork of regulations is a major challenge for multistate employers.

Marijuana use disorders and testing

Marijuana is also a drug of abuse. Federal research indicates that about 2.5% of people have marijuana use disorder. Risk factors for this condition are similar to those of other use disorders—exposure and use at a young age (under 25), untreated behavioral health disorders and a family history of use disorder. The use of marijuana in all age groups has increased along with the state policies to legalize marijuana, which means that more people at risk will have access to the drug. Marijuana use disorder has a couple of unique medical complications, particularly in young people. Among people who start using marijuana at an early age, there is a measureable increase in psychotic conditions that persist after quitting use of the drug.  Regular heavy users of marijuana can develop a condition known as hyperemesis, persistent vomiting that is difficult to treat.

Marijuana use disorder can be diagnosed by physicians using a standardized evaluation and people with this condition can be treated in many existing treatment programs. Outcomes are similar to treating alcohol abuse and relapse prevention strategies, including ongoing recovery support after the acute phase of treatment is concluded, is valuable for this group of patients.

Marijuana testing as a means of monitoring work place safety and identifying the current use status and level of use has always been tricky due to the biochemistry of marijuana. First of all, because THC is fat soluble, a person can have detectible levels long after the most recent usage.  There is also a poor correlation between the level detected and the degree of impairment. This is very problematic for employers doing a critical incidence evaluation (as well as for police and sheriffs evaluating people for safe driving). Some states have determined a cutoff level for blood THC but it is felt that they will not withstand a court challenge given the current level of the science.  

Now to the questions! While not all will apply to all employers, as attitudes and regulations concerning marijuana use change, it may be important to confirm or clarify your organization’s stance on marijuana use in the workplace.   

  1. Do you have employees involved with manufacturing, driving, commercial licenses that require restrictions and monitoring for any drugs or medications that affect performance?

  2. Do you have contracts that require you to comply with federal regulations regarding marijuana and THC?

  3. Do you have employees in states (33+DC) with medical marijuana programs that may require accommodation?

  4. Do you have clear policies for testing employees that are impaired on the job and/or involved in a safety incident?

  5. Have you considered a drug-free policy, and if so is this information in your recruitment and hiring material?

  6. Have you considered the impact of this on your ability to recruit if you have such a policy?

  7. Have you asked your carrier about network adequacy for facilities providing marijuana use disorder treatment and the quality of the available programs?

  8. Have you asked your carrier about screening rates for marijuana use disorder?
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