Generally, Alaniz said, an employer will implement a drug-free workplace policy, and testing for the substance would most likely take place after an accident in order to test for any impairment. Alaniz said employers may also do “cause testing,” when an employee appears to be impaired or is causing issues in the workplace. However, these are usually not marijuana-specific, and instead cover an array of substances.

This is similar to what Levi Torres, president of High 5 Plumbing in Denver, Colorado, does at his company. The company’s employees are able to use marijuana while employed, as long as the employee is not impaired during work hours, and the goods remain off work properties.

He said that if the state you work in has legalized adult use of marijuana, he doesn’t see how an employee can be fired over that. If a company creates policies, understanding, and communication, everyone can get on the same page.

“If you’re holding on to a policy that your state no longer sees as a punishable thing, I think it’s kind of not fair,” Torres said.

Drug Testing

When talking about the trade industry, Ruth Rauls, partner at Saul Ewing Arnstein & Lehr, said the most prominent issue is how to deal with state laws that have exceptions or prohibitions to drug testing for cannabis, in an industry that most likely has safety-sensitive positions.

“Overall when we’re talking about cannabis and drug testing, it really depends on what the state statute says … and the state statues are all over the place,” Rauls said.

Some statutes say that there are no special protections with respect to employees nor employer obligations. So employers do not need to change their standard practices. Some state laws have explicit language that say when an employer can or cannot drug test.

Rauls cited New York as an example of this. New York’s adult-use cannabis law contains language that specifically talks about when a company can and cannot drug test for cannabis. However, the statute provides for several exceptions, one being safety-sensitive positions.

There is a federal statue: the Drug Free Workplace Act. However, as one court has confirmed, it does not require drug tests. So if an employee chooses to engage in legal or illegal drug use outside of work, the Act doesn’t govern that behavior.

With cannabis, there is no accurate intoxication or impairment test; all that can be tested is the presence of marijuana in someone’s system. At this point, there are no established standards for what constitutes impairment, Alaniz said. There are no methods that have been proven that are comparable to the blood alcohol test. There are some that have been pushed that deal with testing one’s saliva, and those are supposed to be able to establish whether someone is currently impaired.

Alaniz said it’s would be a mistake on employers' parts to not have a drug-free work policy in place that would include for cause testing when reasonable.

It's one of the reasons Torres treats marijuana use by his employees the way he treats alcohol usage. It’s not allowed to be in the truck, or on an employee at any time, and if there’s suspicion of use before, during, or after work on property, then there could be some sort of discipline.

“I truly believe I would rather deal with somebody who smokes marijuana than drinks alcohol … And it does cause us to attract a little bit different type of plumber,” Torres said.

“A positive drug test for cannabis metabolite does not necessarily mean the employee is impaired at the time of the test. Because marijuana stays in an individual’s system for a while, an employer will not know if that person is currently impaired,” Rauls said.

“Are you high right now?”

In regard to how Torres measures whether or not an employee is currently impaired, they do random truck inspections on a rotating basis. There are managers that are there to keep an eye out and note anything of suspicion. High 5 Plumbing is upfront with its employees even before they start working for the company.

“When talking about a population of employees in safety-sensitive positions operating equipment, employers have always had to recognize impairment,” Rauls said.

However, recognizing and documenting impairment can be a challenge. New York State put out guidance that said that odor was not sufficient for reasonable suspicion to drug test.

Rauls noted employers can go beyond odor and look at other signs of impairment and then decide what the next steps are.

“One thing that may be very helpful is to ensure your managers and supervisors have training on how to recognize impairment. So if they see something, then they understand what to do and how to do it,” Rauls said.

Alaniz agrees. Supervisors and managers need to be trained on recognizing impairment. A way to do this may be through free of charge training by local police units or sheriff’s department, Alaniz said.

That way, a supervisor would at least know the signs of potential impairment, and having a drug policy in place allows the supervisor to know how to react.

Balancing Legal Risks

There are legal risks associated with employees using marijuana, as there is with any other substance that might cause impairment.

Alaniz said the first and most obvious way to avoid risk and employment issues in the trade industry is to have a thorough drug-free workplace policy that addresses testing at least under the circumstances of after a workplace accident, or if they appear to be impaired.

If an employer has reason to believe someone may be impaired while working, and the employee continues to work, it can increase to risk of injury, or even death, on a jobsite and potential employer liability.

If that were to happen, the accident might not be covered under workers compensation.

“It would go beyond that and possibly constitute gross negligence, Alaniz said.

Rauls said the tricky part is ensuring the employers in the trade industry’s definition of a safety-sensitive position is the same as the state statute’s definition, Rauls said. Some state laws provide more detail than others.

When talking about drug testing, and what employers are doing or not doing, many statutes make a distinction between off-site versus on-site drug use, Rauls said. There are currently no statutes that require employers to permit on-site cannabis use.

That’s what Torres does with High 5. He communicates to his employees even before hiring what their policy is: As long as the employee is not impaired during work hours, and the goods remain off work properties, they can engage in marijuana use. The company does do drug testing, but it isn’t a fireable offense.

“Had we not had a policy that would allow people to do that in their off time, it really would’ve affected our growth. Why would I hinder the growth of my company?” Torres said.