Medical Marijuana and the Construction Industry

In the past five years, the U.S. has seen an increased number of states legalizing marijuana for medicinal and recreational purposes. State legalization contradicts the federal government, which classifies marijuana as a Schedule 1 substance and is illegal for any purpose, including therapeutic uses. State and federal laws are constantly in flux, but for the moment, the U.S. government takes a largely hands-off approach. This poses issues for the construction industry, whose primary concern is the safety and security of its employees.

There is no room for ambiguity about site safety. There are fall hazards, power tools, harmful materials, and heavy machinery. THC, the chemical responsible for the "high" associated with marijuana, impairs judgment, sensory perception, memory, and motor coordination - all things that undermine site safety.

How should you proceed regarding the ever-shifting landscape of legal marijuana? What protocols should you have in place?

Medical Marijuana

Injuries are common in construction, and while many workers turn to opioids to combat pain, others instead turn to legal marijuana. There is no federal law requiring employers to accommodate a potential employee’s medical marijuana card. Some states have provisions requiring employers to accommodate them, while others can refuse to hire that person. Keep in mind, though, that in some states, using medical marijuana can’t be held against a current employee. Doing so could be in violation of the Americans with Disabilities act.

If your business accepts federal contracts, these must have a zero-tolerance policy. Laws regarding cannabis set by the federal government take priority, no matter the employee’s medical marijuana status.

Recreational Marijuana

Legal recreational use of marijuana off company time is an issue for testing. THC is detectable for up to 30 days or more. The employee may fail a drug test several days to several weeks after the last use. If the employee causes an injury, it could be a liability for the company.

Businesses in legal states struggle to find workers who can pass drug tests. This leads to expensive recruitment from out of state, hiring and project delays, and worker shortages. All these add to extra costs of doing business.

Your HR Department

OSHA has yet to publish guidelines regarding marijuana use and testing, so you must create policies and enforcement measures. Ambiguity in the HR department and employee handbook may cause issues—including with OSHA. At-will employment states have it easier: if an employee fails the drug test, it’s up to the company to decide how to proceed.

Implement policies to ensure a drug-free workplace, including for marijuana use. Be sure to outline testing procedures and their limitations. A comprehensive drug and testing policy will ensure that your employees stay safe on the job.

As you create your marijuana policies, integrate them thoughtfully, and be forward-thinking.