The growing labyrinth of laws allowing some form of marijuana use has made crafting corporate drug-free policies a real buzzkill. The task is becoming nearly as complex as drafting strategies for complying with the Family and Medical Leave Act, and that law’s numerous state offspring.
I’m exaggerating. Creating a company policy on drug use and drug-testing procedures can’t be as nightmarish as leave-law compliance.
But after reading “Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers,” I have two overriding thoughts.
One, I hope the writers saw the pun in beginning the paper’s subtitle with “Joint Guidance Statement …”
When it comes to marijuana, the days of a one-size-fits-all zero-tolerance policy are slipping away.
Two, when it comes to marijuana, the days of a one-size-fits-all zero-tolerance policy are slipping away. This is particularly true for those with operations across multiple states with varying cannabis laws.
Societal, legal and medical forces are driving a need for a greater assessment of each employer’s attitude and policies regarding marijuana use. Rapidly shifting dynamics have also increased the need to seek the guidance of legal and health care professionals when crafting corporate policies on marijuana use and drug testing.
The broader forces at play include shifting public attitude toward marijuana; increased adoption of medical or recreational marijuana laws, including some with limits on employer treatment of cannabis users and a few with discrimination protections; the federal government’s inconsistent enforcement stance on state marijuana laws; and evolving scientific evidence of marijuana’s efficacy for treating certain ailments.
At least 23 states now have medical cannabis laws, four others have legalized recreational use, and that trend is expected to continue. Meanwhile, marijuana remains the substance most often detected in workplace drug-testing programs.
The new hodgepodge of state laws includes a few protecting marijuana use outside work hours, others limiting drug-testing practices, and still others raising unknowns, including how some state regulations will interact with disability laws.
Yet employers must still protect worker and public safety, comply with regulations regarding zero tolerance for safety-sensitive positions, and guard themselves against worker impairment, productivity losses and job performance problems, etc.
Fortunately, no state law requires employers to permit workplace drug use or tolerate impairment at work, allowing companies to implement drug-free-workplace policies.
The recent jurisdictional variations in laws, coupled with the desire of many employers to use drug testing to maintain safe work environments, leave companies in a thornier weed patch than before.
“Reconciling varying and dynamic state laws in regard to legality, permitted use in the workplace, and lawful drug testing can be challenging,” the paper stated. “Every employer should consult with legal advisors to ensure that they comply with any applicable state or local laws and design their testing programs to withstand legal challenges.”
Every employer wanting to better understand marijuana, review related state and federal laws, and learn some suggestions for monitoring workers for marijuana use, might want to start by reviewing the guidance paper.
Because while marijuana users often cite relaxation and euphoria as reasons for consuming the drug, it’s obvious that employers have less to relax about.
The Risks of Opting Out
Employers operating in Texas often tell me about the superior claims management results obtained by opting out of the state’s traditional workers’ compensation system.
Their eagerly shared success stories explain why they would want the opportunity to opt out of workers’ comp systems
in more states, as is currently possible only in Texas and Oklahoma.
Yet, if Texas is to be held up as an example of the benefits of opting out of traditional workers’ comp mandates, it is also essential to understand an employer’s potential costs when opting out goes awry.
A Texas appeals court decision upholding an injured meat cutter’s $1 million jury award provides an opportunity to do that.
The ruling handed down recently in The Kroger Co. v. Christopher Milanes shows that companies that opt out of Texas’ workers’ comp system are exposed to considerable jury awards.
That’s an unlikely scenario under traditional workers’ comp systems with exclusive remedy protections for employers.
The Kroger case involved a meat cutter who severed three fingers while operating a saw. His injuries required three surgeries.
Kroger later fired him for insubordination while he was on light duty. Milanes argued that he declined a supervisor’s request to perform a task because of considerable pain.
He sued Kroger for negligence and the appeals court was unsympathetic to Kroger’s arguments for overturning the lower court’s jury findings.
The appeals court ruled sufficient evidence existed that there was negligence in the provision of safe equipment and safety regulations, as well as lapses in training.
Although Kroger did not have an arbitration agreement in this case, the Lone Star State allows non-subscribing employers liberal use of such agreements. Critics of opting out say this keeps disputes out of court and out of the public eye.
A 2014 Texas Department of Insurance report states that 66 percent of large non-subscribers use arbitration agreements.
But the absence of one allows the public, including other employers, insight into the potential medical, legal and jury-award costs when an employee brings a negligence suit.
Texas law particularities include the lack of exclusive remedy protection for non-subscribing employers, which could have prevented the negligence suit.
In contrast, opting-out Oklahoma employers retain that protection.
The case-specific facts and nuances of Texas law applied in Kroger don’t allow the $1 million judgment to stand as an example of what employers would face in other states that one day may sanction opting out.
How employers and employees would fare should other states allow opting out would depend on how legislation is crafted and enforced.
But whenever employers look to implement alternatives to traditional workers’ comp arrangements, they should know the risks, like those Kroger faced.
While the case’s $1 million award is an attention grabber and should make employers weigh the value of traditional workers’ comp arrangements, I don’t think I will stop hearing positive reports from large employers that have benefitted by opting out in Texas.
The 2014 Texas Department of Insurance report shows that 33 percent of the state’s employers opt out and that non-subscribers experience higher levels of satisfaction than those participating in the state workers’ comp system.
The Engagement Factor
Employers face a crisis with recent studies showing that worker disengagement has reached 70 percent.
Fortunately, I’m an engaged worker, according to a predictive tool that helps employers learn more about job recruits and existing employees by measuring their “sense of good judgment” in more than 70 areas.
I learned of the predictive tool called the Judgment Index while reporting on integrated disability management. Renee Mattaliano, VP and practice lead of workforce management at HUB International, told me how employers can apply the index to learn whether a certain job will engage a specific job recruit.
The more engaged a worker, the less likely they are to be injured. The more engaged, the sooner they will return to the job should they suffer an injury.
That’s valuable insight for an employer.
Predictive information about how people will behave is being applied across more areas. A non-traditional loan company, for example, now uses a judgment tool to lend money to recent college grads lacking credit histories.
That tool evaluates grade point averages, SAT scores and colleges attended, among other data. It then determines the value credit applicants will place on their obligation to repay debt.
“Who you are is going to drive what you do.” — Roger D. Wall, chief marketing officer, The Judgment Index
Such technology is opening up a world where employers and others will know much more about us, including what we value.
“Who you are is going to drive what you do,” said Roger D. Wall, chief marketing officer for the Judgment Index.
Interest in how worker engagement might be measured and its influence on disability management led me to accept an offer to learn firsthand how the Judgment Index works. That involved having to prioritize several, sometimes odd-seeming, statements according to how much I agreed with them.
From the lengthy results report, I learned that managing difficult people is not one of my strengths. No surprise there.
But I am very strong on absorbing information, processing it and solving problems. I’m an engaged employee, according to the index results, because I value work and have a high degree of reliability. I also am process- or task-oriented.
The outcome also showed I rank strongly for self-care by paying attention to my physical, mental and emotional health. Obviously, the index didn’t ask how many needless calories I nervously consume at my desk while writing.
Still, information about my attitude toward my overall health could prove valuable to an employer customizing a wellness program or building a return-to-work strategy for my specific needs.
It can provide a lot of information about how you might behave under certain circumstances, as well as advice when improvement or caution may be necessary.
For example, the Judgment Index showed I am “moderately idealistic.” I might be good at helping team members see new possibilities for improving things, but I must make sure my ideas are backed by convincing evidence so people with a strong realist bent don’t write me off as naive.
No wonder I’m engaged by my work. The job allows the moderately idealistic in me to write about how the workplace might be made better.
Now, what to do about the 70 percent who don’t value their work as much as I?