Now that 33 states and the District of Columbia have passed legislation permitting the use of cannabis for medical reasons, construction managers have a new challenge as they work to keep projects on schedule while maintaining safe workplaces. When including the 10 states that have approved the recreational use of cannabis, it will likely become increasingly difficult to identify trade workers who are able to pass a pre-hire or post-accident drug screening.

It gets even more confusing because, under federal law, cannabis is still ranked as a Schedule I drug, meaning it has no accepted medical use and a high probability of misuse or abuse.

One of the key concerns is that there isn’t a standardized test to screen for cannabis impairment. In the case of alcohol, a breath test will provide information on whether a worker is likely impaired, and these standards have been in place for many years. Another issue to be considered is the fact that, unlike alcohol, cannabis can be detected for a month or more in urine or hair testing, especially in people who weigh more than the average.

Another important factor that plays into the discussion and decisions to be made about marijuana by construction companies is insurance. Depending on the decisions made at the executive level about how companies will handle ‘legalized’ cannabis, insurance costs could – and likely will – be affected. Carriers will have the option to increase policy costs for company, project and worker coverage if employers decide against pre-employment drug testing. However, at a time when finding qualified and available workers can be a struggle, construction executives will have to weigh up the cost of higher insurance premiums against the need to have the right labor available to bid for desirable projects.

How can construction executives best manage this new landscape?

There are several aspects of the issue to think about before putting policies in place:

• consider the kinds of projects the company may bid on – for example, companies working on federally funded jobs are required to enforce a drug-free workplace, placing an even higher burden of testing and reporting on the construction company;
• carefully review a state’s workers’ compensation laws – in some states, workers can lose these benefits if a positive drug test is obtained; and
• make sure to understand the potential consequences for any and all drug-related policies. For example, be clear that some policies could exclude potential workers, or even have a direct impact on the current workforce.

In most large construction companies, a policy has been set that a positive drug test suffices as cause to not hire a worker and may be grounds for dismissal in the case of an accident, particularly in situations where the position is safety-sensitive, like a crane operator.

Few construction executives want to be perceived as making decisions and judgments about how their employees choose to spend their time away from the job. It’s a dangerous position to take, and one that could cause unwanted litigation and legal costs. There already is established policy in at least one state upholding the position that employers could not discriminate against current employees, or new hires, for medically directed use when off the job. However, the same policy underscores that employers are not required “to accommodate the ingestion of marijuana in any workplace or in any employee working while under the influence of marijuana.”

What should construction executives who are being called upon to develop and enforce their company’s marijuana policy take as next steps? First and foremost, take the time to find the right resources (legal, accounting, safety professionals) who can help to scope out the size and probable impact of cannabis in the workplace.

• determine which jobs have too much potential liability, for safety reasons, to permit the use of medical or recreational cannabis; and
• be diligent to codify the rules and make sure every employee understands the company’s position on marijuana use.

Finally, be prepared for additional challenges, as this is a situation that is evolving quickly. Construction executives will need to be flexible in dealing with changes related to both medical and recreational marijuana in the industry, and be ready to make the appropriate shifts in policy.