Legalized marijuana about to saddle contractors with new challenges

Construction companies will face a new realm of legal and managerial uncertainty when recreational marijuana becomes legal in Maryland on July 1. 

The state’s newest constitutional amendment will challenge employers to find ways to balance adults’ legal right to use cannabis against employers’ needs to maintain safe workplaces and comply with differing cannabis laws in other jurisdictions. Vague and even contradictory Maryland laws provide limited guidance on how to achieve that balance. Meanwhile, a tight labor market has left many employers concerned that company drug policies could drive workers away.  

“The biggest challenge facing construction companies is that there really is no legal precedent in Maryland to follow and there has been very little clarity from lawmakers in Maryland in terms of what types of policies employers should implement” in response to legalization, said Emily Brennan, Assistant Vice President, HMS Insurance Associates.  

“It is important to consider what this new law does and does not do,” said Nicole Windsor, an employment law and corporate attorney at Bowie & Jensen LLC. “The legislation does not address cannabis use or impairment in the workplace, and the legislation does not provide any statutory protections for employees from adverse employment actions based on legal, off-duty conduct. In fact, Maryland law does not prevent any employer from testing for use of cannabis or taking action against an employee who tests positive for cannabis use.” 

Consequently, employment lawyers and construction professionals are encouraging contractors to review and refine their drug use policies. 

“We recommend all employers adopt a substance abuse prevention program that includes: a written policy contained within your employee handbook, supervisor training, employment education and consistently administering drug testing when appropriate, such as in response to an on-site accident,” Windsor said.  

Developing thorough and effective substance abuse policies, however, involves answering some critical, difficult questions. 

How often do you conduct drug tests, under what circumstances and what are the ramifications of a positive test result? 

“Unfortunately, determining impairment with marijuana is next to impossible,” Brennan said. Indicators of cannabis use remain detectable in the body for long periods and “current tests on the market can’t determine if someone used cannabis this morning and therefore is under the influence versus if they used cannabis a week, two weeks or three weeks ago.”  

“If you have an employee who tests positive, then how do you respond?” said Richard Shaw, Senior Client Executive at RCM&D. “If you can’t determine how much impairment the employee is experiencing, I think the response to a positive test could be an HR nightmare.” 

Brennan proposes just one of numerous difficult situations that company officials could face. 

“Consider for example, the situation where a laborer notifies his or her employer that they have cancer,” she said. “Sometime later through random drug testing, that employee tests positive for marijuana use and advises the company that he or she has been prescribed marijuana as part of treatment. You know that they have a disability, cancer, which is protected. Can you fire that employee for marijuana use at that point? Probably, but that doesn’t mean the employee won’t file a claim or a suit, so it is not an easy answer.” 

In addition to laying out testing policies and establishing how employers will respond to positive tests, new company drug policies will also have to provide managers with guidance on what actions they must take and what documentation they must complete in order to defend the company from potential lawsuits or complaints to the Equal Employment Opportunity Commission.  

On an everyday basis, company foremen, superintendents, project managers and others will have to contend with an expanded challenge of ensuring no worker on a construction site is impaired. Since tests can’t demonstrate cannabis impairment, workplace experts are urging contractors to provide employees with training on how to identify and address any form of impairment.  

“You don’t have to be under the influence of drugs or alcohol to be impaired,” Shaw said. “A person could be dealing with physical or mental issues. They could be running a high fever or suffering effects from diabetes. They could be distracted by financial issues or family problems. They could have a newborn baby and didn’t get any sleep the night before.” 

In addition to observing workers, some companies have also started administering impairment tests to employees as part of their check-in process on a worksite. Presented through a mobile app, the programs ask individuals to solve a series of tests and puzzles. The app compares their performance to a previous baseline to assess possible impairment. 

Finally, employers will also have to continue to track the evolution of marijuana law in Maryland and other relevant jurisdictions, and be prepared to adjust their company policies accordingly.  

“Right now, the [Maryland] law is silent regarding the implications of legalization for employers,” Windsor said. “So one of the biggest challenges for employers remains keeping up with the evolving guidance. The amendment established a Cannabis Public Health Advisory Council, which was charged with studying and making recommendations regarding cannabis use to the General Assembly. We anticipate this is an area that will continue to evolve in Maryland.”