Read the transcript of our recent EHS on Tap podcast wherein we talked with Nina M. French, Managing Partner for the Current Consulting Group, about the current trends in drug legalization, use, and abuse, and how EHS pros can effectively maintain a drug-free, safe, healthy, and productive workplace.
This episode was originally released on April 15, 2019, and you can listen to the full audio here.
Justin Scace: Hello everyone, and welcome to EHS on Tap. I’m your host, Justin Scace, senior editor of the EHS Daily Advisor and Safety Decisions magazine. More and more states are legalizing traditionally illegal substances such as marijuana, and legal substances such as alcohol or prescription medication still have a high potential for abuse. It’s a special concern for environment, health, and safety professionals, as on the job use or abuse of any drug can potentially have devastating, even life-threatening consequences. However, safety managers may experience a little bit of pushback for challenging the use of now-legal substances, and drug testing policies need to be crafted with great care. In fact, the very similar terms of “impairment” and “under the influence” have slight differences that must be taken into account. Safety professionals may feel a little bit lost in this “stoned age” (please forgive the pun), but our guest today has expert insight into how you can effectively maintain a drug free, safe, healthy, and productive workplace.
Joining us for today’s episode of EHS on Tap is Nina M French, managing partner for the Current Consulting Group. Nina has over 26 years of experience in employee screening and managing drug-free workplace operations in a wide variety of fields. She is widely published and speaks at over 40 events each year, and she’ll be hosting a free EHS Daily Advisor webcast, “Impairment or Under the Influence: Legal Drug Use in the Workplace,” taking place Thursday, April 25th, 2019 at 2:00 PM Eastern time. Nina, thank you so much for joining us today on EHS on Tap.
Nina French: Thank you for having me.
Justin Scace: You’re very welcome. Now, we’ve had you as a guest on EHS on Tap before and when we last talked a little over a year ago, we were discussing drug testing in the context of marijuana legalization and the opioid epidemic. However, it seems like so much has changed since then, especially when it comes to legalization of recreational marijuana in various states. What are some of the most consequential developments for 2019, and what does it mean for safety professionals?
Nina French: Well, the momentum for legalization of marijuana has not slowed down since we last talked, and the opioid epidemic, although we’ve seen improvements in some ways for the first time this year, it was reported that you are more likely to die of a drug overdose in the United States than a car accident, statistically.
Justin Scace: Oh, wow.
Nina French: There have been changes, and although again some for the good, not all for the good. What we do know is that right now there are 34 states plus D.C. that have medical marijuana, and that we have 10 states who have approved recreational marijuana and with those different types of approvals, every law is different in each state.
That holds true for both the medical and the recreational marijuana. As we’ve seen like Michigan approve since we talked last, they are very specific in their recreational marijuana laws. It allows individuals who are 21 and older to purchase, possess, and use marijuana and marijuana-infused edibles and then grow up to 12 marijuana plants for personal consumption. Then it goes through a lot of detail about what exactly that means.
The same, just as an example, with their medical marijuana laws and specifically how they address that in the workplace. Their medical marijuana law, qualifying patient may not be denied any right or privilege or be subject to any prosecution or penalty for the medical use of marijuana.
But you can see, even without a law degree or a lot of insight into the industry, how as an HR professional, as a safety professional, that gets awfully complicated very quickly because you don’t know if the person is using marijuana for medicinal purposes or if the marijuana in their system was used for recreational purposes. Really what does that mean for you as an HR professional in terms of their ability to perform their job function?
So, a lot’s changed. We’ve seen a lot more states add and we’ve seen a lot of states consider the change. We just last week saw New Jersey actually fall apart in terms of legalizing recreational marijuana, but what will happen and what we’ve seen now in the history of legalization is the proposed legislation will be modified. They’ll change it and then we will likely see it approved at some point in the near future.
Justin Scace: Okay, so depending on the state or the individual situation and what you’re saying here, it sounds like there’s a lot of different situations that could come up, people may question why an employer should be able to challenge an employee’s use of a quote-unquote “legal” substance. But clearly there can be safety issues surrounding drug consumption. Can you recommend any sort of rule of thumb for employers looking to draw a line between use, misuse, and abuse of a drug?
Nina French: I can. There’s some general rules of thumb and best practices. What’s interesting about the question is that this question actually has been complicated by marijuana and because marijuana is really the only drug that we have that is recreationally available and available through prescription, that’s complicating it. But the concept of under the influence, use, abuse, misuse in workplace has actually always been a gray area.
I say that because if you look at workplace drug testing like a home pregnancy test (and I think everybody’s familiar with how they work), when you take a home pregnancy test, it simply tells you yes or no. Yes, you’re pregnant or not. It doesn’t indicate by that line if you’re just finding out for the first time that you’re newly pregnant or by the time someone’s reading that line you’ve given birth.
Justin Scace: Okay.
Nina French: It just is. Workplace drug testing is the same. When you get a positive for a drug other than alcohol, it is just telling you the presence of that drug in the person’s system. Not whether they’re using it as prescribed, whether they’re addicted to it and misusing it, or if there’s an issue with it.
Every drug varies. Every drug has a different life in the person’s body. Alcohol, again, has some exceptions, but even with that, when you’re talking about use and abuse, there’s a gray area. It’s really important as employers look at drug testing, substance use policies, and safety now they understand those different concepts and then they really refine their programs and their strategies for safety around that understanding.
In terms of best practice rules of thumb, there’s the understanding of marijuana because that’s going to be the really complicated one. It’s a schedule one drug. That means with the exception of very few products that have FDA approval, you’re not going to see FDA approval. It’s still federally illegal, but with the passing of these new legalizations by state, it isn’t like we could say 10 years ago where we said, “Hey, it’s a schedule one drug. We just follow those rules and you cannot have it in our workplace.” You have to have more detailed understanding of the drug, the implications, and put that in your policies.
The second thing I would say is that everyone needs to understand there’s no universal way to prove impairment. You really have to understand that because that feeds into the language that you use and the program that you design. Again, that follows into the whole idea of you’ve got to understand and know use and abuse. We can talk about that a little bit more.
Rules of thumb is understand these deeper issues. Know the laws by state and really stay active in what’s happening in the states where you do business. If it is your role, advocate for employer rights. We’re seeing where that’s very important for… Some of the employers in Oklahoma for instance, where there have been new laws passed and they’re really trying to put in protections for employer rights to test and protection for employer rights to have a safe workplace.
Then I’d say in every program with no exception, there needs to be training across the board. Training for supervisors, training for employees. I can’t emphasize enough how critical that is. Then again, really looking at each of the reasons for tests, why you’re testing, who you’re testing and the methodologies you’re using. You really have to do your homework and get a study of why these are all important, then redesign your programs based on that new understanding because it’s different than ever before.
Justin Scace: Absolutely. One of the things that your webcast is going to address, impairment and under the influence, they sound like the same thing to me, but I understand that they’re different, can you explain the difference a little bit?
Nina French: Yes, and it does. You’re right. Even when I say it out loud, I almost have to check myself after all these years in the business, I have to say, “Wait, why are they different?”
Justin Scace: Right.
Nina French: So, being under the influence means that you’ve consumed alcohol or drugs, but you’re not necessarily able to function normally. So if you have a glass of wine with dinner, you may be able to safely drive home with a blood or breath alcohol level under the 0.08. However, if you drank a whole bottle of wine with your dinner, it’s a much stronger possibility that you would be impaired.
The impairment is that you’re not able to function at your normal capacity because you consumed a drug or alcohol, as opposed to, under the influence where even with that single glass you are under the influence to some degree, but you may not be impaired or showing signs of impairment. I think one of the distinctions that, again, using that pregnancy test example because I think it makes it easier for people to understand, there are people who could have a blood alcohol concentration at or above that 0.08 that we know is legal in all the states (although one actually is lower now), yet they can do all of those roadside type tests. That’s why there really is the ability to see and document signs of physical impairment or the inability to function normally as well as the testing that helps support it but they really need to go hand in hand.
Justin Scace: Right, absolutely. How can safety professionals help their companies craft a drug free policy or a drug testing policy that can stand up in this sort of legal environment?
Nina French: Well, for HR professionals, it’s a little bit harder. The good news is for safety professionals, they have a slight advantage. Now of course the advantage comes with complications, but there is the advantage that you can define jobs as safety sensitive. That definition allows employers to treat that category of employee slightly differently.
Justin Scace: Okay.
Nina French: For instance, if you’re a safety professional and you’re looking to craft a drug-free workplace policy, you can consider a drug disclosure policy. Again, back to the idea of we don’t know if the person’s using the drug legally as prescribed. There are things that you can do within your testing program to identify that if someone, for instance, doesn’t have a prescription, but even if I had a prescription for a legally prescribed drug and I was taking it as prescribed by my physician, in a safety sensitive position, I still may not be able to be doing my job. I still may put myself or the workplace or other employees at risk because I’m taking that drug. And so a drug disclosure policy for your safety sensitive employees allows you as a safety director to say, look, as part of the requirement of your job, you must work with your prescribing physician to let that person know what your job functions are.
If I were in that position and I’m in a safety sensitive role, I could say to my prescribing physician, “Hey, you’re going to give me five milligrams of oxycodone every four hours for my recent surgical pain. This is my job description. Am I able to do this job safely while I’m taking that?” If the answer is yes, then as an employee you have them state that they’re taking it but it’s okay and you’re good.
If you don’t, if the prescribing physicians says no, you cannot operate that machinery or perform those primary job functions, then you with your primary care physician are really having a conversation about, well is there anything else I could take that would work?
If the answer’s no, then the drug disclosure policy that’s in place with the employer really sets up a process by which the employee comes in to the employer explains the situation and then they really go into that HR function of saying, all right, can I make an accommodation? Can the person go on leave? Is there something that we can do, put them in a different role during the time that they’re taking that drug?
Drug disclosure policies are the next level for safety professionals, but very, very important I think for addressing both prescription drug use and abuse and then illicit substances as well. On top of that, it’s really the same things that we talked about earlier in terms of rule of thumb. Training, the definitions of safety sensitive, listing very clearly what the prohibited behaviors are and then really discussing with those employees both in policy and in training: use before duty, during duty, and then returning to duty.
I think that’s important too. How long before I get on my job or come to work, is it okay for me to drink alcohol?
Justin Scace: Right. The buzz worthy topic right now of course it’s marijuana legalization, but alcohol is still the most abused drug plus we’ve still got the opioid epidemic to consider. Some of the other things that we’re talking about now, some drugs like alcohol, it’s easier to… Level of blood alcohol can separate impairment from under the influence whereas other things are just sort of a positive-negative. So, is a catchall drug and alcohol policy really appropriate or does each issue need to be addressed separately?
Nina French: I think you hit the nail on the head. Each issue really has to be addressed separately. We do policy work, so sometimes I feel like it’s almost self-serving. But I say to myself, what’s your willingness to download a will off of the Internet? Well, when you’re 20 years old, your only asset might be a beat-up car in the driveway of your rental property. Yes, you may be all right with downloading something off the Internet and hoping that that one-size-fits-all will works for your meager possessions.
Justin Scace: Sure.
Nina French: So I can’t say unequivocally that some blanket statement or catchall wouldn’t work, but even the best policies by the largest companies with the most to lose in today’s world are not bulletproof. Anyone can start action against an employer over their drug testing policy. Even if you win, even if it’s baseless to a large degree, you’re still investing in getting that claim denied and termed baseless.
As you can imagine, if there is a basis and in this world with… We talked about marijuana being both legal and illegal in many ways, there are many more that are not baseless because there are many more that are really defining what legalization, what impairment, what workplace, and really testing at roadside as well, is going to be in the United States.
The catchall policy really just opens you up more so than ever before to risk. Risk of litigation, risk of issues and problems within the workplace that are going to cost you money. I would say universally that unless you feel like you are that 23-year-old with a beat-up car in the driveway and you’re comfortable, then you really have to look into a better defined policy and you’ve got to update it. I mean if it is a year old, it is a likely out of date in some way at this point.
Justin Scace: Right, absolutely. Do you think that some industries will have a tougher time enforcing these policies than others? For example, there’s a clear safety angle for transportation or construction or manufacturing or warehousing, industries like that, but what about industries that have less clear-and-present dangers when it comes to workplace hazards? Say an office environment.
Nina French: Without a doubt it is getting complicated and employers across the board, I think we’re going to see a very dynamic shift in the next 10 to 15 years in workplace drug testing period. Part of that is exactly this, as you just pointed out. Really for a safety sensitive transportation, construction, manufacturing, warehousing, all of those guys, it’s a little bit easier because like we said, you can define the job as safety sensitive, and then you can work on having different standards.
Keep in mind though that there’s a bill right now that is looking to change the definition of safety sensitive because right now it’s actually pretty narrowly defined. Right now, you have to be in full compliance with the Americans with Disabilities Act as well as the guidance from the Equal Employment Opportunity Commission or the EEOC.
So, safety sensitive positions are not only the ones we talked about, the simple ones that come to mind, but it really is others where there’s failure to perform can cause harm. The challenge, like you said, is with employers right now, some of the very front-page scandals that cost a brand millions and millions of dollars are not those traditional safety sensitive positions, but they’re the ones where cybersecurity has been put at risk or there’s been financial breaches from someone.
If you don’t test those someones, then you’ve got these, the higher risk of negligent hiring claims that can be extraordinarily expensive—on average, those are $1 million and up. The definition of safety sensitive and the broadening of that definition of safety sensitive is going to be very important to employers overall because it will be difficult in the states where recreational marijuana use is available to adults depending on what the rules are.
It’s going to be very difficult to say, “Well why did you test me? I’m an accounting clerk and you tested me and I tested positive in preemployment drug tests. But marijuana can last in the system (depending on the drug test methodology that you’re using) for several weeks.” I think this is this education, crafting, and redefining the workplace policy. You’ve got to understand all these complexities.
Again, it’s easy for me because this is what I do. I don’t have another job. I’m not a safety manager, I’m not in charge. But the complexity of the different testing methodologies and the reasons for tests. You would never, for instance, use hair testing in a post-accident situation because it just simply doesn’t metabolize into the hair in time to be any relation to that event.
But if you’re in a legal state now where recreational marijuana is available in a preemployment setting, is that something you still want to do? Hair testing? I’m not saying good or bad, because it does give you a great indication of lifestyle. Different thing. It’s lifestyle. Whereas if you’re looking at urine testing, you get a few hours after use to a few weeks after use.
When you look at oral fluid testing, you get a few… about an hour after use to about 18 to 24 hours after use. You’ve got a tighter window. In all of those different cases, based on why you’re testing and who you’re testing, you might want to look at those different testing methodologies and say, all right, well for access to our work site… and I think that’s going to be a big thing in the next 10 years, work access versus preemployment. We don’t care what you do at home on your free time, however we do not want you doing that and being quote-unquote “under the influence” when you’re on the job. Again, keep in mind that there is no technology and no universal definition of impairment for marijuana right now. And that will likely be the biggest area in safety, roadside, and workplace testing until there is a way to really say, just like we did with alcohol, 0.08 now is the legal limit, the per se legal limit, in the state.
That’s changed dramatically over the past 20 or 30 years. It used to be way higher, now it’s dipping lower and lower and lower. We don’t have that for marijuana yet. The legalization came before the testing technology, which means again that legal gray ground is going to be an issue for all of us.
Justin Scace: Absolutely. This bill that you were talking about that might address the definition of safety sensitive, now this is a federal bill, right?
Nina French: Correct.
Justin Scace: Okay, interesting.
Nina French: Correct. Right again, and that again is something that I think it’s very important for employers to stay involved with. Stay on top of it and look at it, because if I were in that position, I’m a small employer, but if I’m in a position where my brand is represented by whoever it is, the cashier, it’s not safety in the traditional sense that this audience likely thinks about safety, but there’s a different level of it.
I think in the US, as we look at workplace drug testing and safety, we have to broaden that idea of safety and challenge it as employers so that you don’t find yourself on the other side saying, well, we didn’t challenge it and now we’re splashed over the front page of every newspaper because we had this issue and the person we hired was all over their social media posts, smoking a joint or saying how much they love their edibles. We brought them in, we didn’t test them, or we allowed them on the job and then are you going to get that customer or that other employee come in and say, you knew it. You didn’t do due diligence. You didn’t do what you should have done to maintain safety in your workplace and that was negligent and now I’m going to come after you for much higher liability because of that.
Justin Scace: Right. So, aside from crafting these strong defensible policies and probably most importantly sticking to these policies, what else can safety professionals do to keep their employees safe and their businesses productive amid the current trends of drug use and abuse?
Nina French: Again, I think training is proba… Knowledge and training, knowledge and training, knowledge and training.
Justin Scace: Knowledge and training, cool.
Nina French: When you’re thinking about training in the workplace, the more people feel like you’ve opened the wizard’s curtain and shown them what the logic was, why you’re doing it, explaining these complicated issues. We have heard from unions who say, look here, we want to solve this because we don’t want to penalize our people who are using legally on their own time, but we do not want to compromise safety.
People who are not using drugs are very concerned. It isn’t in these traditional workplaces with safety sensitive roles, it isn’t, “Am I going to be 15 minutes behind production?” necessarily, it’s “Am I going to lose an arm, a leg, an eye a limb, my life?” There is a lot of concern. Letting the employees and the supervisors understand what you’re doing and why you’re doing it is really key.
Training on the signs and symptoms of drug use is also critical for a couple of reasons. Physically there are more eyes. There are more people who are willing to say, “Hey, look, as employee (I’m not a supervisor, I’m just another employee), but I learned the signs and symptoms. I’ve watched this person who’s on the line next to me or who’s driving the car I’m in and I’m concerned that they’re exhibiting signs and symptoms of drug use.” And they have an avenue then to work with the safety managers to work with HR and say, “Hey, look, I know that you have a form. I’m going to fill out this form,” and I’ll tell you why I’m saying a form. “I’m going to fill out this form. I’m concerned for my own safety and for this workplace safety.” It just puts more eyes on the street, more trained people, and it gives you that human camera into the workplace every day. It’s a small investment in that that’s really very valuable. The second piece I said was that form. If you look at some of the cases that are lost in these issues, when challenged, it’s about that. It is documentation. It is are we documenting? Are we not accusing?
In some of the medical marijuana cases that we’ve seen recently, the issue isn’t what the policy was. It was what somebody said. They misinterpreted it. “Oh no, it’s okay if you’re a medical marijuana user, it’s okay, we’ll still hire you… Well, no, I was not correct actually we won’t.” It’s that misrepresentation of the policy that’s concerning because in many states we see that you cannot discriminate against someone because they are a medical marijuana card holder. If you say that, if your people don’t understand that and say, “Hey we, we won’t hire you if you have a medical marijuana card.” That alone just caused you a problem.
Training is really important. More knowledge, the better. The understanding of documentation because just like we said about that roadside idea of what you… you’re 0.08 or if you blow a 0.02 but you’re showing all of these signs of impairment. When you see, observe, and document those, that can actually be as strong if not stronger than the results of the drug tests. Then the two combined often are very significant and impactful way to put your policies in place because you’re saying, “Hey look, we’re not terminating the employment or taking a negative employment action just based solely on the drug test. We also saw that the person was slurring their words.” And sort of the document to behaviors that cause concern in the first place.
Really important to think about that and to train people on that. The other thing that I think is lost a bit and needs a resurgence in the country is the reality of that number we talked about in the very beginning. You’re more likely to die of an overdose than in a car accident. The reality of addiction is here.
There are trained and extraordinarily valuable employees who have had an issue and gone through recovery and although it seems scary, when you look at the statistics of employer-sponsored follow-up testing programs and bringing those employees back into the workplace after they’ve undergone treatment and maybe doing follow up testing programs that were designed by a substance abuse professional, that’s key too. You get back a great, valuable resource into your workplace who you’ve already invested in the training of who may have great tenure and a fantastic amount of institutional knowledge, you’re really doing a twofold good. You’re doing good to your organization by bringing this talent back in and holding onto that talent, you’re also doing good on behalf of that employee by giving them that second chance. Having the person be able to come back to employment, get themselves back straight.
Again, if you look at the statistics, those supported programs through employers are often way, way higher rates of staying clean and sober. Really good on all fronts, but you need to work with a good occupational medical substance abuse, professional employee assistance team, not just one that is there for wellness but doesn’t really focus on this. But that idea of the coming back, the counseling, the EAP, and a return to duty I think is very significant for the greater good of all and the safety in the workplace.
Justin Scace: Okay. Actually building off of that, I was just wondering, what responsibility do safety professionals bear for educating their workforce about the dangers of drug abuse? We just talked about the importance of training and knowledge, but you’re probably going to have some employees there who are thinking, “Hey, I’m not in high school health class right now.” How can safety managers get the message out effectively to employees and just make sure that it’s taken to heart, as you mentioned, not just for the good of the business but for the good of the employees?
Nina French: Right. I think straight talk in many ways is the basis of this response. Again, opening that curtain, that development of your program in your workplace, in collaboration with your safety professionals, with your HR department, with your finance people, with your employees, your supervisors, your unions, is key. Because then there’s buy in at the beginning.
I think that’s really important. Then educating them in that foundation with them, the technical training, like you say, “you’re not in health class,” right, you’re not in health class but here’s why we’re doing it. Here’s how we’re doing it. When I have this conversation, not on an online podcast, not in one of the trainings that I do, but at my girls’ schools or at a party with friends, and I talk them through this same idea, it is a very different conversation and it is almost impossible for anyone not to say, “All right, I get it. It makes sense to me. It makes sense to me for my safety, for my company safety, for our overall profitability. It makes sense to me.”
That is where I think beyond the requirements of a state law or beyond the requirements of the Department of Transportation, that’s where educating their work force is really important. I think when you take it from that foundational piece of why you’re doing it, explain the entire sort of balloon that we’re talking about. You can talk about it for hours and hours and hours, but really having that discussion around it. Using that as the starting point of education in your workplace, I think that is the way you’re going to get the best buy-in and where as a safety professional, if challenged, you are going to say, “Look, we not only followed all of the rules that we were required to do, we went above and beyond the requirements and educated our supervisors, educated ourselves, and educated our employees on the dangers of drug use in the workplace.”
It would be difficult then for anyone to come in and say, “No, you were negligent, you weren’t taking it seriously, you didn’t notice or recognize an issue in your workplace.” Think it’s important and it’s good for everybody. Again, I think it’s difficult for anyone to really challenge that logically and really win the argument if an employer goes at it with that inclusive mindset when they’re re-looking at their safety program and drugs and drug use.
Justin Scace: Absolutely. That’s excellent advice. A lot of things for EHS professionals to think about while they try to keep their workplaces safe and healthy in today’s environment. Thank you again, Nina, for taking the time to talk with us today on EHS on Tap!
Nina French: Thank you.
Justin Scace: To our listeners, if you’d like to learn more from Nina about the issues that we discussed in today’s episode, join her for her upcoming free webcast, sponsored by OraSure, “Impairment or Under the Influence: Legal Drug Use in the Workplace,” taking place Thursday, April 25th, 2019 at 2:00 PM Eastern time. Details on how to register appear on this episode’s EHS Daily Advisor web page.
As always, be sure to keep an eye out for new episodes of EHS on Tap and keep reading the EHS Daily Advisor to stay on top of your safety and environmental compliance obligations, get the latest in best practices, and keep your finger on the pulse of all things related to the EHS industry. Thanks for listening! Until next time, this is Justin Scace for EHS on Tap.
|Nina M. French is Managing Partner for the Current Consulting Group and has over 26 years of experience in employee screening and managing drug-free workplace operations in a wide variety of fields. She is widely published and speaks at over 40 events each year.
You can view the on-demand version of the webcast mentioned in this transcript here: Impairment or Under the Influence: Legal Drug Use in the Workplace.