May/June 2016
Where recreational marijuana is legal, how do scrapyards ensure workers are not impaired and are able to work safely?
By Megan Quinn
Atlas Metal & Iron Corp. is tucked in an industrial neighborhood of Denver, but it’s just a short drive to restaurants and a craft beer tasting room. A few years ago, the neighborhood also started seeing a new kind of business that has become almost as common in Denver as convenience stores: recreational marijuana dispensaries. When Colorado voters approved recreational marijuana in 2012, businesses like Atlas had to ask themselves a new question: How does this affect our employees’ safety and our drug policies?
Recreational marijuana is legal in Alaska, Colorado, the District of Columbia, Oregon, and Washington. This year, voters in several states, including California and Nevada, will decide if it should be legal there, too. As more states explore the possibility of legalizing marijuana for recreational use, more scrapyards must decide how best to monitor their employees and update their drug policies to better reflect the realities of legalization. Some have considered cracking down on drug use by emphasizing a zero-tolerance policy through random drug tests. Others have opted not to change their policies at all, either because they feel the policies already work well or because they are strictly based on federal guidelines banning marijuana use for both medical and recreational purposes. Still others have no set policy.
Though there are many approaches to handling the issue of legal marijuana, experts say safety should be front and center at all times. Take a look at your drug and alcohol policy—and your safety policies—to decide if they effectively cover everyone’s safety, regardless of whether they drive a truck, operate a baler, or work behind a desk.
Uncharted Territory
When dispensaries started opening in the Denver area, Ben Rosen, Atlas’s vice president, wondered how legalization might affect the company’s employees. Once the drug became more available, would that raise the risk of someone coming to work high and causing an accident? Two years into legalization, however, Rosen says he has seen no evidence that marijuana has affected his employees’ performance or safety practices. “Here in Colorado, a lot of employers are looking at marijuana like they look at alcohol. They say, ‘You wouldn’t come to work drunk, so you shouldn’t come to work high,’” he says.
Atlas ultimately decided not to change its drug policy after legalization. Instead of allowing its 110 employees to partake of the drug outside of work, the company stuck with its zero-tolerance stance. Employees must pass a drug test as part of the hiring process. Atlas also requires a drug test when workers experience an injury or a near miss. It does not do random drug testing; instead, supervisors monitor employee behavior.
Allowing Atlas employees to take advantage of legalization was not a good idea for the company, Rosen says, because federal law still prohibits marijuana use, and Atlas must follow federally mandated regulations from the Department of Transportation and OSHA.
The same year Colorado legalized marijuana, Washington voters followed suit. Ken Kushin, senior buyer for Simon Metals Co. in Tacoma, says the news left some companies feeling that they were in uncharted territory. “When [legalization] passed, everyone was talking about it, and a number of other companies talked about changing their policies because of it,” he says. Simon, however, left its own zero-tolerance policy intact. The policy calls for drug testing after an injury, accident, or near miss, and all 50 of Simon’s employees are subject to random drug testing. In short, marijuana is a no-no for employees under any circumstances, and Kushin doesn’t see that changing anytime soon. It would not make sense for Simon to revise its policy in a way that doesn’t line up with federal law, he says. “Why would you change [the policy] just because it’s legal [in the state]? At the end of the day, federal law prevails.”
All scrapyards may not have the same rules, but they all have a duty to enforce OSHA regulations, says Mark Lies, a lawyer who specializes in occupational safety and health law and employment law for Seyfarth Shaw (Chicago). Lies says he knows of scrapyards that don’t have a drug and alcohol policy. That could lead to possible legal problems, he warns, if someone challenges the employer’s reasons for their being fired. Drug policies are put in place because impairment leads to safety hazards. Yet, “you could theoretically have a situation where you have no policy at all, and just base [firings] on safety violations” and OSHA regulations, regardless of whether the worker’s impairment was a cause of the violation, he says. “You don’t lock a machine out? You’re fired. You don’t wear PPE? You’re fired.” That means an employee could be disciplined for his or her actions without the supervisor needing proof that the employee was impaired at the time, he says. Employers “have the right to fire you for acting unsafely, even if it has nothing to do with drugs or alcohol.”
Creating or Updating Your Policies
If drug laws have changed where you operate, consider sitting down with your safety team and your human resources representative, if you have one, to review your policy. Terry Cirone, vice president of safety for ISRI, says drug and alcohol impairment poses a major safety hazard, and your policy should maximize safety for everyone who walks through your door. “No matter what the substance, if you’re impaired, you can’t do your job correctly, and that is dangerous,” she says.
The “best” policy varies from company to company. For example, some smaller companies may not have the resources to do random testing or do not believe it is necessary unless they perceive an ongoing problem with accidents or employees exhibiting risky behavior.
In 2015, a panel from the American Association of Occupational Health Nurses and the American College of Occupational Environmental Medicine published the following guidelines for workplace safety and marijuana impairment:
■ Prohibit marijuana use at work.
■ Clearly explain whether marijuana use outside of work is allowed.
■ Clearly explain the consequences for violating the policy.
■ Educate your employees about how marijuana can affect health, safety, and job performance.
■ Write specific guidelines for testing after an accident or when a supervisor believes someone is impaired.
■ The recommended measurement for impairment is 5 nanograms per milliliter of tetrahydrocannabinol in the bloodstream. (THC is the chemical that causes the psychological effects of marijuana.) A medical exam to detect impairment is always recommended.
■ When creating or editing your policy, get legal consultation to make sure it complies with federal, state, and case laws.
■ Whatever the policy, make sure it is widely distributed at your company and easily obtainable for anyone who wants to look it up.
Above all, the panel says, “legalization of marijuana for recreational or medical use does not negate workplace policies for safe job performance.”
Know the Signs
If you suspect a worker has come to work high, what do you do? According to the joint task force report, employers first should learn how to recognize behavior that might indicate a worker is impaired and then have a clear policy for following up with that person, such as ordering a drug test. Things to look for could include watery, bloodshot eyes; a lack of coordination; or appearing unfocused, distracted, or drowsy. If you need pointers on how to recognize the signs, local law enforcement agencies sometimes have tip sheets or even workshops.
Rosen is comfortable that the policy Atlas has in place now is working well for its employees, but he admits it can be tricky to spot a potentially impaired worker. Signs of alcohol intoxication, such as slurred speech or the smell of whiskey on an employee’s breath, may be proof enough that your worker needs to go home in a cab—and probably will be fired. Marijuana can be more subtle, he says. “If this was just an office, it might not be as big a deal from a safety standpoint. It’s different [in a scrapyard]. Say an employee goes home on a Thursday night and has an edible [a food containing marijuana]. Will that impair his ability to work with heavy machinery the next day, and, if so, how do we see that? The answer is, you probably can’t see it.”
Ever-Evolving Rules
Since legalization is still relatively new, Lies says laws are still shifting and changing. That means employers will continue to ask questions about how to detect when someone is high, what the best reaction is, and whether there is a clear law that will guide them in shaping their workplace marijuana rules. That’s why it’s important to stay on top of news about proposed regulations or laws, Lies says. Some states, such as Washington and Colorado, have news sites devoted to reporting marijuana-specific news about laws and regulations. Activist groups such as the National Organization for the Reform of Marijuana Laws also cover changes to state laws. Rosen says he uses an app on his phone, Leafly, that has a marijuana-related news section. Lately he has been keeping an eye on Colorado’s DUI laws, which do not distinguish among drivers who smoke marijuana, use prescription drugs, or drink alcohol. The state is in the process of creating a law that better determines whether a driver is impaired after using marijuana. The outcome could affect the way other businesses conduct employee drug tests, he says.
“Until some of these laws are a little more defined, a lot of employers feel they really have to err on the side of caution” when they create drug policies, Rosen says. “When you’re in an industry like ours that has unique safety considerations, you have to think of the safety of your people and your customers.”
Megan Quinn is reporter/writer for Scrap.