[N]ow that Vermont has legalized the possession and use of marijuana, some employers would like the state to ease its restrictions on how far businesses can go to determine if workers are using drugs.
Decades after passing a law limiting workplace drug testing, lawmakers are likely to be confronted with the issue again next session, when they are expected to debate whether to create a taxed and regulated marijuana market.
A 1987 Vermont law prohibits employers from randomly testing their workers. Employers can drug-test applicants after a conditional employment offer has been made. They can also test if there is probable cause of drug use.
Deborah Wright, the owner of Green Mountain Traffic Control in Bellows Falls, said without testing, she sometimes learns of drug use on the worksite days or even weeks later from other employees.
“We have had a couple incidents over the years where someone actually lit up on the job,” she said. “Because of unsupervised jobs, we’d prefer we had the option to randomly test. That includes for alcohol abuse as well as other medications and marijuana.”
Under existing law, if there is an accident in the workplace, without strong evidence that drugs were involved, post-accident testing isn’t allowed.
“It might be time to refresh the conversation around what is allowable to be tested in the workplace for drugs,” said Betsy Bishop, president of the Vermont Chamber of Commerce.
The issue could be limited to jobs where safety might be at risk, said Matt Musgrave, who works on government affairs for the Associated General Contractors.
“Our position isn’t really going in and suggesting that you go testing all the restaurant workers and people working at the movie theaters,” Musgrave said. “But there’s a distinction between someone who is turning the video on in the movie theater and someone driving an excavator.”
Ten states and the District of Columbia have legalized at least small amounts of marijuana for adult recreational use, according to the National Conference of State Legislatures. Vermont’s law, legalizing adult possession of up to an ounce of marijuana or up to two mature and four immature marijuana plants per household, took effect July 1.
Drug-testing wouldn’t necessarily answer an employer’s question about the worker’s capability to perform a job. Right now, there is not a reliable test that shows how much marijuana has been consumed, or whether a user is impaired.
“All the states that have legalized are wrestling with this,” said Jon Caulkins, a professor of operations research and public policy at Carnegie Mellon University who has been studying drug policy for 28 years. Caulkins said he most commonly hears concerns about the public driving cars while using marijuana.
But the issue also comes up with factory work and other occupations where safety can be compromised, he said.
“I think that the tension here is between user rights and worker rights and third party rights, and it wouldn’t surprise me if a number of states do, over time, preserve the rights of employers to test,” he said.
Musgrave, too, said that the AGC would take workers’ rights into consideration if the association raises the issue in the upcoming session.
“We try to be free and do the things we want to do and let each live his own life, but when it comes to safety, that’s where the conversation needs to come together,” he said. “I don’t think anybody wants to pick on someone working in a deli; that’s not our vertical.”
Bishop said she will likely work in the upcoming session to make sure that employers retain their right to have a drug-free workplace.
“Safety, roads, commercialization, that’s not where our expertise is,” she said. “We have decided to narrow our focus in that debate to what happens in the workplace. If the state has legalized marijuana usage, which they have, that’s fine. We just don’t want it in the workplace, and we want to make sure we have mechanisms to keep it out of the workplace. We see that as the same as other things that will alter or impair your work.”
With alcohol, there is a patchwork of different laws — for example, concerning open containers — around the country. The matter of marijuana use at work will probably be decided in different ways depending on the jurisdiction, Caulkins said. He recommends passing laws that allow employers to test, and to ban somebody from the worksite if a cannabis test comes back positive, even if it doesn’t show impairment.
“If you were to err on the side of caution, you’d allow employers to have a policy that said we don’t want our employees using, because we don’t think we can test effectively,” he said.
Employees can reasonably be asked to follow the rules they now do for alcohol, where they must abstain for at least eight hours before starting work, Musgrave said.
“With marijuana, it’s the same thing,” he said. “There’s a distinction between using a legal substance at home or when you are on the job site. We’ll tailor our request to something that we actually think will go through.”
