This feature is a part of “The Dotted Line” series, which takes an in-depth look at the complex legal landscape of the construction industry. To view the entire series, click here.
On Dec. 2, the U.S. Drug Enforcement Agency will hold a hearing on whether marijuana should be reclassified as a Schedule III drug. That would remove it from Schedule I — which includes heroin, LSD and ecstacy — and reshelf it alongside Tylenol with codeine and anabolic steroids.
The proposed downgrade is part of a broader trend of more lenient marijuana regulation in the U.S. There are now only four remaining states — Idaho, Kansas, South Carolina and Wyoming — where any form of marijuana use is still against the law, according to Houston-based drug testing and employee screening firm DISA Global Solutions.
Trent Cotney
Courtesy of Adams and Reese LLP
“Two years from now, I’d be surprised if we’re not 100% legal,” said attorney Trent Cotney, a partner and construction team co-leader in the Tampa, Florida, office of Adams and Reese, who specializes in cannabis regulation and employee drug testing in construction. “It’s coming that quick.”
States’ progression toward decriminalizing marijuana has accelerated since 2012, when Colorado and Washington state simultaneously legalized recreational use. But the drug remains illegal at the federal level, and even if the DEA’s proposed rule change wins approval, it would still only be available for medical use.
The changing legal tapestry combined with requirements for testing in some federal contracts have vastly complicated construction employers’ approaches toward pre-employment, on-the-job and post-incident cannabis testing, especially in states with laws that protect workers’ off-duty marijuana use.
For example, in New York, employers cannot test workers for marijuana either in the hiring process or once they are on the job. And where testing is still legal, widely used urine and hair analysis present other issues, since they don’t detect actual impairment, just traces of cannabis that can stay present for days or weeks after consumption when a person is completely sober.
In an industry where an impaired worker on the jobsite could endanger the lives of themselves and others, those developments have left construction employers in a difficult position.
Kathryn Russo
Courtesy of Jackson Lewis
“In high-risk industries like construction, it’s such a challenge for employers to just figure out what to do to keep the workplace safe, but still comply with all of these laws that protect marijuana usage while the person is off duty,” said attorney Kathryn Russo, a principal in the Long Island, New York, office of Jackson Lewis who focuses on workplace drug and alcohol testing under federal, state and local laws.
Where state, federal laws intersect
Complicating the matter further are provisions in construction contracts on federally funded jobs that may require drug testing of employees, including for marijuana, and drug-free workplace discounts from insurers that do the same — as well as how such requirements interact with state law.
In New York, for example, the same law that protects off-duty marijuana use by employees has language that allows employers to test for marijuana if required by federal regulations or another federal mandate such as a contract with a federal agency.
Given this complexity, it’s crucial for construction employers to understand what the laws are where they work.
“It depends on what state we’re talking about,” said Russo.
Take California, where recreational use is legal. Two laws that took effect this year prohibit employers from asking workers about cannabis use off the job or using hair or urine tests to hire, fire or penalize workers. But that testing aspect doesn’t apply to workers in the building and construction industry, who can still legally be required to submit to monitoring for marijuana use.
For contractors looking for a state-by-state breakdown of these types of laws, Atlanta-based law firm Troutman Pepper has authored a comprehensive analysis of marijuana testing and employment policies by state.
When, how and why to test
This “yes, but” aspect of marijuana laws has led many construction firms to outsource completely this area of human resources to companies that specialize in pre-employment and on-duty drug screening.
“A lot of contractors are throwing up their hands and subbing everything out,” Cotney said.
Others have stopped testing for marijuana in the first place, especially for hiring decisions. That’s particularly true in construction, which faces an endemic shortage of skilled workers and has been trying to eliminate, rather than impose, barriers to employment.
“Many employers are removing marijuana from their pre-employment testing panel,” Russo said. “Employers are often finding it difficult to recruit qualified applicants if they’re going to get screened out because of marijuana use.”
In this environment, attorneys say many construction firms are only testing employees for marijuana when required to do so, for instance due to a provision in a federal contract, or post-incident as dictated by insurance rules.
In those cases, because urine and hair tests don’t positively indicate active impairment, blood tests may be a more accurate method. There is also a more recently available breathalyzer test from Fremont, California-based Hound Labs that purports to detect cannabis use within a few hours.
That type of testing shows promise, Russo said, but it hasn’t been widely adopted by the industry to date.
“The manufacturer of the breathalizer says that the window of detection is roughly two to three hours,” Russo said. “If that turns out to be accurate, I think that would be attractive to many employers.”
How to keep jobsites safe
In the end, even in states where employers can’t test employees for marijuana use, jobsite supervisors are still bound by OSHA’s general duty clause to maintain a safe workplace for all workers, an aspect that is usually outlined in the construction contract.
Both Cotney and Russo noted that if a supervisor notices evidence of a worker’s potential impairment — bloodshot eyes, slurred speech, wobbly movements — which could be due to recent substance use, including marijuana, they have legal cover to send that worker home.
“Regardless of whether it is legal or not, if it impairs your ability to perform your job duties, safety trumps that any day of the week,” Cotney said.
Supervisors should be trained in identifying those kinds of situations and any intervention should be done in the presence of at least one other person, Cotney said. Any subsequent testing should adhere to a published policy manual that workers should be required to sign upon employment as part of the contract as well.
In terms of other safety aspects general contractors include in contracts with their subs, Cotney noted best practice is to put the onus on the subcontractor to follow all applicable federal and state safety regulations. Otherwise, if the contractor proscribes specific safety actions, such as testing for marijuana use, it could be found to be the controlling employer of the site with regards to safety, an aspect that would open it up to further liability.
“The rules are constantly changing, if they weren’t, I wouldn’t have a job,” Cotney said. Rather than prescribing specific actions for subcontractors, “it’s better to say, ‘You’ve got to comply with the law, you figure it out,’ and take it from there,” Cotney said.
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