• Marijuana is the #2 substance of abuse in America, second only to alcohol2
• Marijuana use increased significantly between 2013 and 20143
• Marijuana is addictive just like alcohol4 • Marijuana impairs a person’s ability to operate a car or other heavy machinery just like alcohol5
• Marijuana causes harm to the human brain just like alcohol6 Te truth is that legalization leads to
more people using marijuana, more people driving under the influence of marijuana, and more employees being at work under the influence. Now, consider these “truthful” counterarguments: First, legalizing marijuana will not lead to
more people using pot. Te truth is, since the legalization effort picked up steam over the past decade America has experienced a significant increase in marijuana use. According to the federal government, 24.6 million Americans 12 and older admit to being “current” illicit drug users (current is defined as having used an illicit drug in the past 30 days). Of that number, more than 19.8 million are current marijuana users, not casual users, but frequent, at least monthly users. Te 2014 rate represents 7.5% of the population, which is higher than the rates in 2002 to 2011, which ranged from 5.8% to 7.0%. Tis increase corresponds directly with the timing of the legalization of marijuana in many states.7 Second, marijuana is not a dangerous
drug. Te truth is, people under the influence of marijuana are not safe workers or safe drivers. At least one source of proof is found in a report involving traffic fatalities. Based on crash statistics from six states that routinely perform toxicology tests on drivers involved in fatal car wrecks—California, Hawaii, Illinois, New Hampshire, Rhode Island and West Virginia—drugged driving accounted for more than 28% of traffic deaths in 2010, up from just over 16% in 1999. Marijuana proved to be the main drug involved in
24 datia focus
the increase, contributing to 12% of 2010 crashes compared with just 4% in 1999.”8 Of course, medical marijuana is legal in five of the six states included in the report. Tird, legalizing marijuana will not impact
the workplace. If people under the influence of marijuana are less safe, generally, and more dangerous specifically as drivers, it stands to reason that employees under the influence of pot while at work could lead to catastrophic consequences. According to the annual Drug Testing Index from Quest Diagnostics, a leading provider of laboratory services, workplace positive tests for marijuana increased 6.2% nationally between 2012 and 2013. Marijuana positive drug test results increased in Colorado 20% and in Washington 23% aſter those states legalized pot. Clearly, more workers are using marijuana or at least testing positive for it.9
To Test or Not to Test What about drug testing for marijuana? In a 2014 survey of drug testing providers conducted by the Current Consulting Group, 16.9% providers indicated, “some employers [clients] have already eliminated marijuana from their drug test panel.” Here’s where “plain old logic” applies: If fewer employers drug test for marijuana, more marijuana users will get jobs that in the past they could not have qualified for when a company conducted pre-employment drug testing that included marijuana. As fewer employers randomly drug test for marijuana more marijuana users will continue to be employed, perhaps in safety- sensitive positions, where they can cause accidents and bring harm to themselves and others. As fewer employers include marijuana in post-accident drug tests more marijuana users will file workers’ compensation claims that go uncontested and result in employers’ insurance premiums increasing. All of the above should be cause for
concern. But, perhaps, there are other more compelling arguments in favor of drug testing for marijuana. Employers are, rightfully so, motivated by their company’s botom
line. Following are two reasons why every employer should drug test for marijuana from a “botom line” perspective, even in states where marijuana is legal:
1
Respondeat Superior which means “let the master answer,”
is an area of law that basically holds employers responsible for the actions of their employees when workers are functioning within the scope of employment. Essentially, the law imposes an obligation upon employers to exercise some measure of authority and control over employees for the safety of others. Tere are examples of employers who have been held legally responsible for the actions of an employee high on drugs or alcohol who caused harm to a third party. For example, what about an employee participating in a company- sponsored activity of entertaining clients who consumes excessive amounts of alcohol and, while under the influence, atempts to drive home and ends up causing an accident that harms or kills another person? Depending on the circumstances, an employer could be held legally responsible for that employee’s actions. An employee under the influence of marijuana acting within the scope of his or her job could place an employer in a very dangerous and costly position.
2
Negligent Hiring is another area of law that should
cause concern to employers who may be considering not testing for marijuana. In general, this area of law follows the principle that negligent hiring or retention occurs when an employer knows, or “by the exercise of reasonable care” should have known, that an employee is “incompetent, unfit, or otherwise dangerous,” and the employer fails to take reasonable measures to prevent injury to others. These are complicated areas of law
that may or may not apply to specific situations. Consult an attorney with experience dealing with respondeat superior and/or negligent hiring cases if you have specific concerns.
Spring 2016
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