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Unpacking the Employee Marijuana Use Dilemma

  • Published
  • 9 June 2021
  • Category
  • General

The complex web of laws regulating marijuana use makes it challenging for U.S. employers to balance workplace health and safety policies with employees’ rights.

If you are entangled, we recommend that you register for WorkCare’s free webinar on Marijuana in the Workplace: Clinical & Regulatory Update. This timely webinar, scheduled for June 23 at 1 p.m. EDT/10 a.m. PDT, will be presented by Jeffrey Jacobs, M.D., M.P.H., vice president of WorkCare’s Medical Exams & Travel division (which includes drug and alcohol screening programs) and a certified Medical Review Officer.

Surveys show demand has increased during the COVID-19 pandemic, with 30 percent of consumers shopping for cannabis products more often, and 25 percent of respondents saying their use increased in the past 15 months.


Among topics on the agenda, Dr. Jacobs will discuss differences between cannabidiol (CBD) and tetrahydrocannabinol (THC) to help shed light on physical and mental health effects and impairment risks at work.

CBD and THC are cannabinoids that interact with the neurotransmitters in the brain that influence pain, the immune system, stress reactions, sleep quality and other critical functions. In some cases, employees depend on medical marijuana to be fully functional and present at work.

CBD is extracted from hemp or cannabis. CBD is a primary ingredient in medications prescribed for seizure disorders, and it is contained in medicinal gels, gummies, oils, supplements and extracts. It is commonly used to help relieve anxiety and different types of pain. Research is being conducted on the use of CBD oil to treat neuro-degenerative diseases such as Alzheimer’s and Parkinson’s.

THC is the main psychoactive compound in cannabis that produces a high. It is frequently consumed by smoking marijuana, and it is also available in oils, edibles, tinctures, capsules and other products. People who take CBD-dominant medical products will not get the high that is experienced when consuming products containing THC. (Legal hemp contains 0.3 percent or less of THC.) Some products have both CBD and THC.

For employers, temporary side effects are a cause for concern. An employee who has recently consumed THC may experience slower than average response times, a general feeling of being high, memory lapses, loss of coordination and increased heart rate. Side effects associated with CBD include drowsiness, fatigue and potential interactions with other medications, although CBD products are usually well-tolerated.

State vs. Federal Regulations

Dr. Jacobs will also talk about how the patchwork of state and local marijuana use laws contradicts the federal Controlled Substances Act (CSA), and why it’s important for employers to consider the big picture when reviewing and refining workplace policies – especially if they have multistate operations. He says there are a number of ways to protect employee health and safety without violating employees’ rights, including Drug-free Workplace and other zero-tolerance programs, but the variability in applicable laws makes it wise for employers to get legal guidance.

For example, medical or recreational products approved for use by a state often fall within the CSA’s definition of marijuana and are listed as Schedule I drugs subject to stringent federal regulatory controls. The CSA aims to protect public health while ensuring patients have access to controlled pharmaceuticals prescribed for medical conditions. (Refer to State Marijuana “Legalization” and Federal Drug Law: A Brief Overview for Congress by the Congressional Research Service, a non-partisan entity under the direction of Congress.)

Job Protections

Some states provide job protections for registered medical marijuana patients and/or recreational users, including rules to prevent employment discrimination. In jurisdictions where off-duty recreational cannabis use is protected, attorneys say employers may legally prohibit workers from being under the influence on the job, but they have to specifically define “under the influence” and determine how to test for the presence of THC to enforce that policy.

According to Dr. Jacobs, while hair, saliva, urine and blood testing can detect recent use, there is not a widely accepted test to detect cannabis intoxication in real-time, making it difficult to evaluate potential impairment in the event of a work-related accident or injury. In addition, training is needed for supervisors and managers who are expected to act on reasonable suspicion.

WorkCare clients and other employers have so many questions around these issues that Dr. Jacobs has offered to extend the webinar from 60 to 90 minutes for those who want to remain on Zoom for an expanded Q&A period after his formal presentation. Don’t miss it!