Working on Drugs: The Contractor’s Problems

Remaining vigilant is a contractor's best defense.

While more and more states are legalizing medical – and in some cases, recreational – marijuana use, the federal government maintains that marijuana is a Schedule 1 drug with no recognized or approved medical uses. Recently, the Attorney General announced revocation of the Department of Justice “handcuffs” on marijuana enforcement. This gives US attorneys the discretion to prosecute marijuana growers, sellers, and users – regardless of underlying state or local laws.

Regardless of what the federal or state enforcement agencies do, concrete contractors need to be careful not to let impaired persons perform work or wander around job sites. And no court has condoned use of marijuana on the job site.

Recently, however, a Massachusetts court held that a licensed medical marijuana user who was fired for failing an employment drug test could bring a claim for disability discrimination under state law. Significantly, this employee was able to show that she was not impaired or using marijuana at work. This means that contractors need to have resources available to check for impairment and act only on the basis of “reasonable” suspicion.

Perhaps more alarming is the increase in legalized, recreational marijuana. The CDC now estimates that more than half of Americans have used marijuana at some point in time. Estimates of the number of users impaired at work – or even using during work – are increasing. Again, you need a clearly written and easily understood policy that prohibits possession and impairment at work.

And the most alarming trend of all is the dramatic increase in opioid usage. The statistics are frightening. Opioid prescriptions dispensed in the US in 2016 had fallen to 236 million from a peak of 282 million in 2012. When you consider that the working population in the US is 243 million people that means nearly everyone has used opioids. Between 2006 and 2014, the most widely prescribed opioid was hydrocodone (Vicodin). In 2014, 7.8 Billion hydrocodone pills were distributed nationwide. The second most prevalent opioid was oxycodone (Percocet). In 2014, 4.9 Billion oxycodone tablets were distributed in the United States.

Opioids include both legal painkillers like morphine, oxycodone, or hydrocodone prescribed by doctors for acute or chronic pain, as well as illegal drugs like heroin or illicitly made substances like fentanyl. Because of their highly addictive nature, users who start taking a prescription for pain relief often become addicted, and because of the higher cost of prescription opioids, these users often resort to heroin, fentanyl, or other illegal opioids. Again, this makes it vital for contractors to have a properly written drug policy in place, as well as the resources to train supervisors to act correctly when drug abuse is suspected.

The first step is to make certain your drug policy prohibits impairment, whether by legal or illicit substances. In a perfect world, your policy should define “impairment” or “under the influence” as any reasonably noticeable deviation from normal behavior. Your policy should also define the procedures and, more importantly, the penalties applicable to impairment on the job. In states where medical marijuana is legal, you should consider implementing a random drug testing policy that intends to capture those who are impaired.

Your policy should require employees to “self-disclose” if they are medical marijuana users who will flunk a drug test but claim that they are not impaired or using at work. But, note that you should protect employees who self-disclose from discrimination. Finally, your policy should provide resources for treatment of drug abuse and encourage workers to get that help.

Second, you need to establish a solid working relationship with an occupational health clinic for both testing and education. Note that for some kinds of testing, e.g., marijuana use, a urinalysis test is not going to show present impairment because the “residues” of use may last a week or more in the body. Instead, your clinic should do saliva (best), blood (invasive), or hair (relatively new) testing.

Your health clinic should provide periodic training on the symptoms of abuse of drugs and alcohol. This is the only way to establish that your belief that a worker was “reasonably suspicious” will hold up. Although not exhaustive, here is a list of potential signs of impairment: slurred speech, watery/red eyes, shakiness/tremors, loss of balance, diminished alertness, sleepiness, sweating, fatigue, or frequent nausea, vomiting, or diarrhea. You should get training on abuse of over-the-counter substances as well.

Contractors will face liability if an impaired worker does damage to people or property. Your best defense is a high state of vigilance.