By Terry O'Connor, Esq.
A new federal regulation severely restricting the use of post-accident drug testing comes at a bad time for California employers who will have to cope with legalized marijuana use under Proposition 64.
California voters are poised to approve the use and possession of marijuana for adults over the age of 21. Employers hoping to prevent drug-related accidents at work will lose a valuable deterrent: mandatory post-accident testing.
A. Effect of Proposition 64
Proposition 64 will allow adults to possess, transport, or purchase up to one ounce of marijuana. It will allow adults to grow up to six marijuana plants and process them for recreational use. Of course, it will legalize the recreational use of pot.
The backers of Proposition 64 are careful to insist that it will not impede the right of California employers to prohibit marijuana use nor require employers to “accommodate” its use. An employer will still be able to prohibit the use, possession, transfer, or sale or marijuana in the workplace.
Proposition 64 itself does not affect the employer’s anti-drug policies, including policies which prohibit on-duty drug use by employees or prospective employees. Indeed, Proposition 64 encourages employers to maintain drug- and alcohol-free workplaces. Because marijuana is still classified as a restricted controlled substance under federal law, employers may utilize random testing for safety-sensitive positions or pre-employment screening.
B. New Federal OSHA Regulation
On August 10, the Federal Occupational Safety and Health Board published a new rule to enhance reporting of injuries including a controversial “anti-retaliation” rule. This rule prohibits mandatory post-accident drug testing because such testing may discourage the reporting of injuries and/or discriminate against employees.
Fed-OSHA has certified Cal-OSHA to perform all workplace safety functions in the State. As a result, Cal-OSHA will be required to enforce these federal rules.
The rationale for the new drug-testing restriction arises in the anti-discrimination provisions of the work safety laws prohibiting employers from discharging or disciplining workers for reporting work-related injuries. An employer’s “procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting.”
According to OSHA, its anti-discrimination rule prohibits any “blanket post-incident drug testing policies which deter proper reporting.”
Many employers, in an effort to prevent work-place accidents and injuries, have workplace safety policies which include post-accident drug and alcohol testing. The purpose of these policies is to deter on-the-job drug use, not inhibit the reporting of injuries. Of course, some employers have overly broad policies which require substance-abuse testing whenever there is a workplace accident. Some policies require testing whenever there is an injury or property damage.
Obviously such provisions are overbroad and probably not even followed in practice. No one would want to pay for a drug test for a clerical employee who sustains a paper cut. However, even a reasonable post-accident testing policy may run afoul of the new rule. OSHA wants employers to shift “… post incident testing [to] situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by the drug use.” This does not completely rule out post-accident testing, but it significantly narrows the scope of such policies.
This narrow exception to the “no test” rule would require employers to divine whether an employee’s drug use was the likely cause of the incident. Reasonable suspicion policies require an objective examination of the employee’s behavior and appearance. Is the employee’s speech slurred, her eyes bloodshot, is she acting erratically, sweating profusely, or even in the possession of a controlled substance? Even if an employer has reasonable suspicion of drug use based on objective facts, is that enough to conclusively establish that the drug use is “likely to have contributed to the incident?”
Of course, employers with broad post-incident testing programs will need to bring them up-to-date by detailing as many objective factors as possible before requiring a post-accident test. There has been considerable employer push back on this testing rule. Barring some intervention by the federal courts or an OSHA decision to revisit the final rule, this law will be in effect January 1, 2017.
C. What Does a Positive Test for Marijuana Mean After Prop 64 Passes?
The most common test for marijuana is a urine test which measures THC-COOH, a metabolite of THC. A test is “positive” at the level of 50 nanograms/milliliter of THC-COOH.
This metabolite remains in the user’s system for days and weeks after use. A person who smokes occasionally, or for the first time, will likely test positive for one to three days after use. However, frequent users will remain positive for a week after use. In order to pass a pre-employment drug screen, a “frequent” user would probably have to wait more than ten days to pass a urine test; a chronic user might have to wait a couple of months. (Pre-employment testing is not covered by the new OSHA rule.)
To add further uncertainty, the rate of metabolism of THC varies from one person to the next. There is really no way to tell whether a Monday afternoon forklift accident was caused by Joe’s lunchtime reefer or, as he claims, his post-Prop 64 lawful use on Sunday afternoon watching the Raiders. With no ability to prove a more likely than not causal relationship between this provable marijuana use and the accident, an employer who discharges Joe is inviting a retaliation complaint from OSHA.
Envision the same scenario without the accident. Joe is in a safety-sensitive position and after lunch, his foreman notices his eyes are bloodshot and he is acting a little spacey. The reasonable suspicion drug test shows a THC-COOH level of 50 ng/mL. Can the employer fire Joe or does he have a defense that his Sunday use was legal?
These are questions that will have to be answered in 2017 when employers face an inevitable rise in marijuana use by employees with, due to OSHA’s ban of mandatory testing, fewer tools to deter drug use impacting the safety of the workplace. At a minimum, all employers should revise their post-accident drug testing language to bring in line with the new OSHA rule.
© 2016 Noland, Hamerly, Etienne & Hoss