Learning Legal with Andrew Easler, Esq.

Marijuana in the Workplace

November 20, 2021 Andrew David Easler, Esq. Season 1 Episode 1
Learning Legal with Andrew Easler, Esq.
Marijuana in the Workplace
Show Notes Transcript

Today’s episode of Learning Legal, co-hosted by Andrew Easler and Ethan Hunt, addresses the rapidly changing laws related to Marijuana in the workplace. 

Topics covered include:

  • Amazon’s removal of Marijuana from its drug testing panel,
  • Whether other employers should or will remove marijuana from their drug testing panel or stop drug testing altogether,
  • The different types of drug tests available and how they differ,
  • The legality of its use in the United States,
  • What the future looks like for Marijuana as a Schedule I Controlled Substance under the federal Controlled Substances Act,
  • Legal concerns for employees subject to drug testing, 
  • The potential consequences of removing Marijuana from a workplace drug testing panel,
  •  And more!

To learn more about drug and alcohol testing in the workplace (including marijuana), visit our sponsor https://worktraining.com and make sure to follow their youtube channel at https://www.youtube.com/channel/UCxKV...

Need legal advice? Now is a great time to schedule a paid in-person, virtual, or phone consultation at: https://easlerlaw.com/booking/

Speaker 1:

This podcast is not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals. Using the internet for communications with the firm will not establish an attorney-client relationship and messages containing confidential or time sensitive information should not be sent.

Ethan Hunt:

Hello and welcome to Episode One of Learning Legal with Andrew Easler. I'm Ethan Hunt co-host and to my left is Andrew Easler. Hello, Andrew.

Andrew Easler:

Hello, Ethan. How are you?

Ethan Hunt:

I'm doing pretty good. You would consider yourself a legal expert, yes? A lawyer, perhaps?

Andrew Easler:

Perhaps a lawyer.

Ethan Hunt:

Yes.

Andrew Easler:

Perhaps managing attorney.

Ethan Hunt:

Yes. Yes.

Andrew Easler:

Of my own law firm here in Melbourne.

Ethan Hunt:

Yes. Managing attorney of Easler Law. It's really good to have you here. Just a little introduction, this podcast is serving as a deep dive into all things legal, business, any type of legal questions. We are here to address that and hopefully educate on a couple topics as well. Our first topic that we're going to be discussing is marijuana in the workplace, which you have a large experience with. Not in that way, but in the way of you are considered a subject matter expert in this field.

Andrew Easler:

That's correct. Yeah. A lot of people, a lot of my clients don't realize this other side of my legal career is that I work as an expert witness drafting, drug, free workplace policies, testifying in federal and state courts on all things, drug free workplace.

Ethan Hunt:

Do you think that was going to be something you would be an expert in going down the line?

Andrew Easler:

Yeah. I never set out to become a drug and alcohol testing expert or a urine specimen collection expert. That was never my intention in life. But when you start a business, you keep your mind open and you keep an eye open for opportunities. That's just where opportunities led me.

Ethan Hunt:

Marijuana in the workplace. Obviously a very complex topic. There's a lot of different moving pieces. Right now, we're seeing some companies be a lot more lax with drug testing, not testing for marijuana specifically. Amazon was a recent case. What do you think right now? What do you think one of reasons why we're drifting away from testing marijuana?

Andrew Easler:

Yeah, well, there's a million reasons right now. We've got probably a thousand different factors that go into play that any employer is probably getting overwhelmed with trying to decide, "Well, should I, or should I not remove marijuana or should I be drug testing or should I not be testing altogether?" What I can say is, there's certainly meritorious arguments on both sides and hopefully we'll go into some of that today.

Ethan Hunt:

going to one of the more recent news stories that we saw that prompted us to actually start with this topic, is Amazon actually got rid of their drug testing policy in terms of marijuana use. I just want to go ahead and get your opinion on that and why do you think that actually happened?

Andrew Easler:

Yeah, that's a great question. I certainly don't have an ear to the Amazon warehouses throughout the United States, so I can't necessarily peer into their thoughts or their thought process. But what I can say is there are quite a few employers who are struggling with that same exact question. A lot of that has to do with looking at how the laws are changing across the United States.

Andrew Easler:

We are seeing a lot more states in particular that are more liberal leaning in terms of politics, that are supporting more civil rights and more employee rights. That has led to this argument against drug testing and in particular testing for cannabis and marijuana. That's one thing we were talking earlier and you mentioned the proper term for the drug is marijuana.

Andrew Easler:

Well, if you look into the history of the term marijuana, that's actually not the proper term that was more of a racially motivated brand for the war on drugs. It was a way to demonize a lot of the immigrants who were coming in from our Southern border, because, "they were bringing in this dangerous drug," which we had already been utilizing for over a hundred years here in the United States.

Ethan Hunt:

Yeah.

Andrew Easler:

Ruining our American population. Fun little piece of history for you on that one, but we've come a long way, but we've still got a long way to go I think. Cannabis is something that I think we were looking at polls, I think the last time I saw one, it said 80% of Americans are in support of the decriminalization of marijuana and/or the legalization of marijuana for at least medical use.

Ethan Hunt:

Yeah. Going off of that, I know that there are some states where it's legal recreationally, you can go to, wherever marijuana shop or cannabis shop or you can order, like on your phone, you can get delivered to your door. It's crazy.

Andrew Easler:

Yeah.

Ethan Hunt:

But you still have employers that do require this type of testing. Do you think that's something we're going to see going forward where states are stepping away from this or do you think you're going to see states step in and be like, "You can't keep testing that way," or just curious to hear your thoughts on that.

Andrew Easler:

Yeah. We live in an economy that is supposedly or mostly capitalist based. What that means is the market drives a lot of what happens in the country. That also means the market can drive regulations and laws within the state or federal system. What we're seeing right now is a shortage of labor and what that leads to is employers looking at their screening process and saying, "Are we being too critical of these potential employees that could be coming in here and working for us, maybe we should start looking at relaxing some of our protocols."

Ethan Hunt:

Yeah. Getting a little bit more broad here, backtracking a little bit, this is something that I'm still very confused by. I know a lot of people are, is the state versus federal.

Andrew Easler:

Mm-hmm (affirmative).

Ethan Hunt:

When it's, I know it's illegal federally. You can, if the FBI catches you with it or something like that, you're in trouble, but it's legal in the state. How does that work? I guess that it ties into the workplace, but can you touch on that?

Andrew Easler:

Yeah. What Ethan's referring to here, folks, is the fact that The Controlled Substances Act, which is a federal law, which is basically the law of the land throughout the United States, says that marijuana or cannabis is a Schedule One substance, which means it is illegal and according to the federal government, there's no acceptable medical use for it. Under that Schedule One of The Controlled Substances Act, it's illegal. Technically that should apply to every single state.

Ethan Hunt:

Mm-hmm (affirmative).

Andrew Easler:

Now the federal government has its limitations through The Commerce Clause and how they can apply these federal laws to state systems. Some states have decided, "Well, even though it's still illegal federally, we're going to not prosecute people for it, or we're going to make it legal recreationally." We have, we've seen either legalization recreationally or medically for more than half of the United States. Right now the next thing that's on the horizon, is looking and seeing if Congress is going to remove marijuana from Schedule One.

Ethan Hunt:

Why do you think it hasn't been legalized federally up to this point? Because it seems you have a lot of states hopping on board. We also at this point, we do have a more liberal leaning government in Congress right now. Want to get your take as to why you think it illegally hasn't been federal wide yet.

Andrew Easler:

People have asserted several different reasons why that is. In fact, with so many Americans supporting its legalization or at least de criminalization, there should be on paper, no reason why it shouldn't be removed from The Controlled Substances Act, at least Schedule One, we've got a major problem throughout the country with the opioid epidemic, fentanyl overdoses.

Andrew Easler:

We've got, even these minor drugs like marijuana are coming in from across our borders laced with these things and causing overdoses. I think we have a lot more important things to worry about I think, than marijuana being our top priority. But it certainly is a concern and it does have safety implications. If you're under the influence of marijuana operating a forklift, that could be a hazard to the workplace, either people or things.

Andrew Easler:

That being said, without getting into conspiracy theories, one of the arguments as to why it is not legal yet federally is that there's so much money to be made by the pharmaceutical companies. There are synthetic forms of marijuana that are licensed through the FDA that are prescription. Even they've basically found a way to sidestep The Controlled Substances Act and then basically sell it for a lot more than you would in a...

Ethan Hunt:

You got to love pharmaceutical companies. Huh?

Andrew Easler:

Right. If you follow the money, I think that at least follow that as you're reasoning behind why The Controlled Substances Act is the way it is right now, that is the direction we're leaning.

Speaker 4:

Are you an employee seeking to become more valuable to an employer?

Andrew Easler:

Okay. Awesome. We're going to take a quick little break. Go ahead and have this little ad read that you'll hear and we'll be right back.

Speaker 4:

Or are you an employer stressed out about employees understanding risk and regulations in your workplace? If so, worktrain.com can help. We are experienced in adult learning and trusted by employers, credentialing bodies, professional practices, and governmental agencies to deliver exceptional workplace training and even offer a content delivery platform for others to resell our courses. Feel free to browse our course catalog @worktrain.com and check out our public training resources.

Ethan Hunt:

Welcome back to Learning Legal. I'm Ethan joined by Andrew. We're going to go ahead and touch on the implications and possible future legislation coming out and how that might affect drug testing in the workplace. I guess broad range, what are some of the things that you've seen coming down the pipeline? What are some future things you think people need to be looking out for?

Andrew Easler:

Yeah. I think right now we've got a lot of employers who are scrambling to figure out what should I do next? If there's this wave of states that are legalizing, decriminalizing, making legal recreational marijuana across the United States, do I need to get ahead of the curve? Or if it's already happened, how do I make sure that I'm not running afoul of the legislation?

Andrew Easler:

Certainly as lawyers working in this field, we're also running around like chickens with our heads cut off, because of how quickly the legislation has changed, even in just the last five years. Right now, again, the trend is towards legalization and employee rights. What we're looking at now, over half of the states here in the United States have legalized it in some way or form. The next step would be that the federal government remove marijuana from the Schedule One of Controlled Substances Act, and that's going to have some serious legal implications.

Ethan Hunt:

Something that I think is very interesting is looking at the concept of a safety sensitive position.

Andrew Easler:

Mm-hmm (affirmative).

Ethan Hunt:

Driving a forklift or you're a truck driver or something like that. Something that requires you to be alert at all times. Do you think it's going to be if it does get removed from Schedule One and it becomes a lot more lax in terms of regulation, do you think it's going to be something where we see marijuana treated like alcohol, in the way that, how they train for it. It's more of an awareness than a test or how do you see that? The training side of it going forward?

Andrew Easler:

Yeah. Those, that was an extremely loaded question.

Ethan Hunt:

Sorry. Sorry.

Andrew Easler:

Because there's a lot of different factors that go into play. That's fine. When it comes to safety sensitive functions, you're always going to have some kind of law in place that's going to keep the public safe. How far that law goes into intrude on employee privacy, is going to be the question. I think the old ultimate root of the question you're asking, is really how do we determine if you are under the influence now? Not, "I had a joint on the weekend on Saturday and I was impaired then, but I wasn't working. I wasn't planning on working. I wasn't going, I wasn't on call and I come in on Monday and I'm not under the influence, but now I have metabolites in my system, which are remnants from what happened on Saturday."

Andrew Easler:

If I get called for a random urine test and I'd go positive, even though I'm not under the influence and I pose no danger whatsoever to my workplace, should I be punished for that? That's the really big question that a lot of states are grappling with. Some states have decided that instead of going just on the drug test alone, they're going to require that you have somebody who can recognize the signs and symptoms of actual impairment. That is one of the bars, if you see them with bloodshot eyes.

Ethan Hunt:

Yeah.

Andrew Easler:

Or slurred speech, or stumbling around that kind of thing, then those are all factors that show impairment rather than just going off of what the urine test is. That being said, urine tests have a very low detection window. There's three different types of drug tests that are commonly used here in the United States and throughout most Western countries.

Andrew Easler:

Urine is the most popular by far. It's about 90, some estimate, put it at 80-90% of all drug tests in north America. Then behind that, we have oral fluid, which is saliva and that's grown in market share. Then behind that as hair specimen collection. Really the big difference is determining when the use occurred. The shortest detection period right now is with saliva or oral fluid. We're seeing a ton of employers starting to adopt this. In particular, in states that have legalized recreational marijuana, because you're seeing something that is much, much, much closer to actual impairment when you get a positive result for that, because it has a much shorter detection window. You're talking a day to two or three days rather than, urine, which can go back up to 30 days for consistent marijuana use and hair, you're talking three months.

Ethan Hunt:

Yeah.

Andrew Easler:

On a hair test.

Ethan Hunt:

Yeah, and it seems very like a very much a gray area, in terms of where the line is at. Every state is different and every, and the federal government is different and everyone has different takes on it. Do you think we'll ever have a clear line in terms of this is good, this is bad. Or do you think it's just going to be something that just continuously develops?

Andrew Easler:

Right now it is a lot of, "Let's try this and see if it works and then let's let Nevada try out their little experiment and see how it works there. Then if it does, we will try that. Take a little bit of that, move it over here." I think eventually it will harmonize, because that's how the alcohol laws ended up working. If marijuana works similar, it'll probably end up that way as well.

Ethan Hunt:

Okay. Wow. Very interesting. We're going to go ahead and take another break. We'll be right back.

Speaker 4:

Are you an employee seeking to become more valuable to an employer or are you an employer stressed out about employees understanding risk and regulations in your workplace? If so, worktrain.com can help. We are experienced in adult learning and trusted by employers, credentialing bodies, professional practices, and governmental agencies to deliver exceptional workplace training and even offer a content delivery platform for others to resell our courses. Feel free to browse our course catalog worktrain.com and check out our public training resources.

Ethan Hunt:

Welcome back again to Learning Legal. I'm Ethan Hunt joined by Andrew Easler. We're going to go ahead and continue talking about marijuana in the workplace. We were just talking about the future of legislation, what we're going to see going forward and drawing some parallels between both marijuana and alcohol, how those have been treated.

Andrew Easler:

Yeah, absolutely. I think alcohol is a great parallel, but it's difficult because when you're looking at testing alcohol or testing for alcohol, alcohol is a volatile substance, which means it's going to start dissipating the moment that it hits air and it's going to try and occupy whatever vessel that you put it in, including your body. Your lungs become that vessel ultimately. That's why we can do breathalyzer tests, because we have scientific research that shows a direct correlation between the concentration of alcohol and your lungs versus the concentration of alcohol in your blood.

Andrew Easler:

We don't have that same parallel or that same exact solid scientific research to back a breath test for marijuana, though there are some that are coming on the market, just because you blow and you have marijuana metabolites apparently in your breath does not necessarily correlate the same way that alcohol would correlate. Again, that becomes a really... That's the more difficult hurdle I think with marijuana than it was with alcohol, because once we had the breathalyzer, that was a really good way to keep track of things.

Ethan Hunt:

Moving forward and as it gets, I'm sure even more complex as we go forward, what do you think employers need to be looking out for? Do you have any suggestions for employers? I know you're a lawyer, so I know you're $250 an hour and I know they're not paying for this, but do you have any insight into what to look out for moving forward?

Andrew Easler:

Yeah, absolutely. I can tell you what I've seen other employers do that are faced with these problems, that I'm sure you guys are facing as well. Part of the problem is finding an employee. Number one, a lot of employers are telling me, "Well, the moment I tell them we have a drug free workplace policy, they walk right back out the door."

Andrew Easler:

If you are a trucking company, there's no choice. You have to have a drug free workplace program. If you are a moving company and you don't have any moving trucks that are CDL or commercial vehicles under the DOT regulations, then you don't necessarily have to follow the federal regulations, which means you may or may not have to have a drug free workplace policy.

Andrew Easler:

That being said, it really shouldn't be an option. Driving one of those moving trucks is pretty safety sensitive. I think you can do a lot of damage. What I've suggested for some of these people, is instead of striking marijuana altogether from your testing panel, switch from urine or hair over to saliva and that is the much better shorter detection period. If somebody did something three days ago, and it was legal and it was off duty, do you really care?

Ethan Hunt:

Yeah.

Andrew Easler:

That's the question employers have to ask.

Ethan Hunt:

Yeah. I think the last question I have/topic, I like to give my own little question here spin. Since I have you here, who's an expert in all things urine testing, all that, how effective really is urine testing, in catching somebody like that has used marijuana recently? Because you look at, I mean, so often movies, TV, where it's the joke is avoiding the urine test or getting someone else's urine or using something fake. How effective is that really? Can you see that really being a standard moving forward?

Andrew Easler:

Yeah, I think, there's a lot of parallels that you can draw between collection sites, those people that actually do the tests or collect the specimens to be sent off to a laboratory. Then the donors, the employees who are actually providing those specimens to something like cops and robbers or, Vegas casino and the card counters. Each side comes, every time a donor comes up with a new way to cheat the system, then all the collectors come up with a way to counter it.

Andrew Easler:

It's been like that since drug testing started. I think the important thing is that to avoid cheating, that you have a properly trained collector, somebody who knows what they're doing and is trained properly and effectively, and they know what to look for in terms of signs of tampering with a test. That being said on the employee side, there's a lot of a work that needs to be done to ensure the accuracy of a test and that false positives aren't attributed to an employee.

Andrew Easler:

I mean, it's their livelihood. I see it quite often where a collection site, I should say too often, it's not quite often, but it's too often, that a collection site makes a mistake and then it ends up impacting somebody's entire career. It's both sides of the coin. It becomes difficult. That being said with urine, you're typically going to have the donor or the employee go into the restroom by themselves. That's when the opportunity to cheat the test comes about, if you switch modalities to something like hair or oral fluid for testing, you're directly observing that individual the entire time. That greatly hinders the chance of anybody being able to interfere with or tamper with any of the results, ultimately.

Ethan Hunt:

Okay. Thank you. I now know much more about urine testing than I've ever known before. I think that's one... I think what you touched on is probably the most interesting part of all this, is the fact that some companies are abandoning testing marijuana. Just for the fact that people will test positive or they'll walk out the door because it's such an interesting time, where so accepted by so many people and it's still illegal in so many places. I think it's just such an interesting, interesting concept.

Andrew Easler:

Right. My advice is definitely don't throw the baby out with the bath water. Right? Just because you're concerned about falsely attributing a positive result to somebody who was not impaired at work, does not mean that you should just completely cut out the marijuana from your panel altogether, because the flip side to that is if somebody does come into work, you do perform a test on them, but it doesn't cover marijuana. They ultimately have an accident. Let's say a fatality at work as a result of their impairment, you could potentially be liable as the employer for resulting damages and losses because you didn't do enough to mitigate that risk of that employee working under the influence.

Ethan Hunt:

Right. Well, I really appreciate you coming out today and just sitting down with me on Saturday. Talking about different marijuana testing and just giving us a overall picture of what to look out for going forward. Thank you so much for coming in.

Andrew Easler:

Yeah, no problem. I always love talking about urine.

Ethan Hunt:

That's a great way to end it there. The last, the best way to end a podcast. Really appreciate you all tuning in.