Spokane Journal of Business

Marijuana testing a must for many manufacturers

Legalization leads to more usage, industry challenges

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Manufacturers in the Northwest are facing a new crisis. Until recently, hip tech firms and Mom and Dad’s couch were the biggest recruiting threats to the manufacturing industry. Although many manufacturing companies are adapting with flex schedules, leadership opportunities, and skilled cross-training, they have run headlong into a new problem: legalized marijuana.  

Marijuana, once deemed secretive and illicit, has an increasing social acceptance that’s resulting in more workers testing positive. Quest Diagnostics, one of the nation’s largest workplace testing providers, released a study last September noting that marijuana positivity had increased 26 percent since 2011, with pot showing up in almost half of all positive drug tests. 

While use among young adults is the highest, use among adults between 45 to 64 is increasing by 33 percent per year, according to a report released by the Washington Office of Financial Management in 2015. That has left manufacturers, in desperate need of skilled workers, wondering if they should scale back testing or remove marijuana from the testing panel.

There are several compelling arguments for strict drug testing in manufacturing environments.  First, companies cannot risk injury to their employees.  

“Ask any of my employees, and they would rather take a test than take a chance on working next to someone that may be high,” says Barry Stewart of AccraFab Inc., a precision fabrication facility in Liberty Lake. “Getting our workers home safely is paramount. Drug testing was never in question—by leadership or by our employees.”

Companies also are obligated by federal and state law to maintain a safe work environment—especially crucial in manufacturing environments filled with high-powered, lethal machinery. Slowed thinking, coordination, or reaction time could result in an accident, severe injury, or even death. Not only could this cripple company morale and production, but expensive, time-consuming negligent hiring or retention claims could result.   

Another reason not to discard drug testing is if you have done or want to do business with the federal government. Companies with federal contracts are legally obligated to meet Drug Free Workplace standards, including testing. In today’s ultracompetitive business climate, many manufacturers can’t afford to lose the federal government as a client, or potential client. 

Finally, if a company elects to stop testing or to alter its test, word gets around.  No one wants to be the employer where all the habitual users apply.

The law is on your side

After medical marijuana was legalized in 1998, many Washington businesses wondered if they had to allow some use of marijuana. They do not. In Roe v. Teletech (2011), the Washington Supreme Court considered whether a call center employee’s job offer could be rescinded for a positive test, even though she had a medical marijuana card. 

The court sided with Teletech, holding that private employers aren’t required to accommodate marijuana use.  Similar decisions have been issued in neighboring states, including Oregon, Montana, and California, as well as by the federal Ninth Circuit Court of Appeals.  And if the courts are holding the line against medicinal pot, then they certainly are holding the line against recreational use.

So how can companies know–really know–-if employees are high at work? They can’t. Unlike the precision of blood alcohol testing, which correlates blood alcohol level to time of consumption, marijuana testing relies on capturing the level of THC—the metabolite in marijuana—in urine, blood, saliva, or hair.  

Unlike other street drugs with a detection time of hours to a few days, THC can remain in the body for weeks.  Thus, an employee who smoked at a weekend party and is randomly selected to be tested two weeks later could test positive.   

Not only is testing difficult because of the inability to pinpoint time of use, it also is unable to assess accurately how much a person can smoke and still safely operate a forklift, for example. Marijuana impairment is fully dependent on the size, weight, and health of the user, as well as when, how, and what the person ingested. That means impairment is assumed—not guaranteed—based on detectable levels in blood, urine, saliva, or hair. 

The detectable level limits, above which impairment is assumed, vary widely: Washington state driving impairment is assumed at 5 nanograms; federal Department of Transportation impairment is 50 nanograms.  Testing levels can reach as high as 64,000 nanograms.

The hope for marijuana testing is technology. Researchers at Washington State University and private labs in California and Colorado are racing to develop accurate marijuana breathalyzers. However, the variables are extremely difficult to manage, and an accurate, affordable breathalyzer is still several years out. In the meantime, manufacturers must rely on traditional methods. 

Five things to do now

• Check your culture. Before you can get effective buy-in to a drug and alcohol policy, your company needs to be walking its talk. Does your company say one thing and do another? For example, do you only test production employees and not corporate or administration? Do you let your sales reps slide when they get loaded at out-of-state conferences? 

You get to decide what your tolerance level is, but employees are less likely to buy in to a strict policy if they think that the “suits” aren’t equally responsible. Similarly, support supervisors who take people off the line for reasonable suspicion testing. Being willing to sacrifice some production efficiency in favor of safety speaks volumes about your culture.

• Write a clear, legally compliant policy. Once your culture is in line, dust off your drug and alcohol policy to see if the terms are accurate, relevant, and legal. A vague policy that prohibits “impairment” or “working under the influence” is difficult to enforce. Instead, have “zero-tolerance for detectable levels.” 

Also, include details about the types of testing, consequences for not testing or positive tests, a confirmation and appeal procedure, and last-chance opportunities. If you have post-accident testing, also be sure to have an attorney review your language to ensure that it complies with recent federal Occupational Safety and Health Administration guidance.

• Communicate early and have a transparent process. From the get-go, be clear about announcing your company’s policy on marijuana. If you do pre-employment testing, include it in your job application and post on your company entrance. Even more important is making your testing process as transparent as possible so employees know that the process is fair and equal.  

An international provider of steel and precision castings in the Valley, Spokane Industries Inc., gives employees the time to talk to their drug testing provider and welcomes questions about the tool used to select employees for random tests. 

“If people understand how testing works, then they have a lot more trust in the company and its decisions,” notes Tracei Scofield, HR director at Spokane Industries.

• Double-down on supervisor training. Supervisors are the eyes and ears of your company. They need to be adequately trained on how to spot signs of impairment and how to confront an employee who should be tested.  Accra-Fab’s Stewart brings in experts for annual training on spotting the signs of impairment. 

“It’s made a huge difference for supervisors and employees to know what to spot and that the company supports them stepping forward,” he says.

• Use your resources. As employees become more complex and regulations more numerous, employers need to rely on external expertise. Employee Assistance Plans (EAPs) can be an affordable way to assist employees dealing with emotional issues or addictions, as well as an effective tool in a last chance employment situation.  Most testing agencies offer on-site impairment training, and membership associations, like Vigilant, can advise on the law, provide training for supervisors, and offer solutions from other companies in the same boat.

 

Jodi Slavik is an employment attorney and strategic services director with Vigilant, an Everett, Wash.-based membership organization that provides legal counsel to employers. 

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