Business

Going to smoke marijuana legally in Illinois? Drug tests in Iowa still could jeopardize your job

Flowering marijuana plants grow at the Smokey Point Productions facility in Arlington, Washington, on Jan. 12, 2017. (Bl
Flowering marijuana plants grow at the Smokey Point Productions facility in Arlington, Washington, on Jan. 12, 2017. (Bloomberg file photo by David Ryder)

An Illinois resident is on the precipice of a career move to Iowa — a state with well-documented workforce needs.

The job candidate has toured the new company’s office, developed rapport with the prospective bosses and even navigated that thorny interview question of “what’s your greatest weakness?”

The candidate would’ve gotten the job, too, if it weren’t for the Iowa company’s drug test results, which stand to penalize Illinois residents for what in January will become legal recreational marijuana use in that state.

Iowans also could find themselves out of a job if required to take a random drug test too close in proximity to their legal weekend marijuana use across the state line.

Days from the start of Illinois’ marijuana sales, questions have arisen for Iowa businesses over how to account for a potential increase in off-the-clock drug usage in workplace policies.

Some companies might start eschewing tests for THC — tetrahydrocannabinol, the psychoactive component of marijuana — altogether.

Drug tests’ shortcomings

Employers can perform drug tests under multiple different scenarios. These include preemployment screenings, random or unannounced tests on part or all of the workforce and “reasonable suspicion” tests conducted on individual employees.

Many current workplace drug policies are “woefully insufficient” because the tests can detect the presence of THC but not whether the person is impaired, said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, based in Washington.

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THC can remain in a person’s urine from one to three days if the subject is an infrequent marijuana user, and for up to 30 days if she or he is a chronic or habitual user, according to medical testing company Quest Diagnostics.

The compound also can be found in a subject’s hair from one to three months after use, the company found.

The tests “don’t have the ability to detect impairment; they detect the presence of certain compounds as a proxy for impairment,” Armentano said. “Our culture’s going to have to address this, and we’re going to have to address it by alternative means of determining whether someone’s under the influence” of marijuana.

What possibly could be “the way of the future,” he said, is a performance test for a new hire, evaluating items such as time perception or short-term memory, which companies later could require of employees suspected of impairment to repeat.

That an employee could fail a drug test when not impaired is “absolutely” a concern for employers, said lawyer Katelynn McCollough, of the Des Moines-based Davis Brown Law Firm, who has made presentations to employers about medical marijuana in the workplace.

McCollough said about a dozen employers have told her they either no longer screen for THC or have considered dropping that part of their drug tests as a result of Iowa’s growing medical marijuana program.

“They’re just finding that it’s not worth it,” she said, noting the tests’ lack of conclusive evidence for impairment.

When it comes to policing recreational marijuana use, McCollough said she is aware of companies on both sides of the issue.

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Some companies “don’t have a problem with someone using that type of product outside of work so long as they still come into work, they’re not impaired and they complete all of their job duties,” McCollough said. “There are other employers who choose to take a more hard stance with their drug policies. ... It’s absolutely a decision point for employers right now as to whether they want to keep (THC) on their drug tests.”

Kirsten Wennerstrom, a board member with the Iowa Senior Human Resources Association, said she also is aware of Iowa companies that might do away with THC testing. Others, she added, could do away with preemployment drug tests entirely, especially if it keeps Iowa as an attractive place for Illinois residents seeking jobs.

“Employers will do what they need to do to adjust to market conditions, and if that is to eliminate preemployment drug testing, I think you’ll see that happen,” Wennerstrom said. “The war for talent is alive and well, and we have to be responding to the market.”

Are Iowa companies revising policies?

The Gazette emailed inquiries to 24 employers in Eastern Iowa — ranging from Corridor businesses, not-for-profits and local governments to national companies with an Iowa presence — for information on any workplace policy changes they had instituted or discussed because of Illinois’ changing marijuana law.

Only three employers provided responses on the record.

Lisa Rhatigan, ImOn Communications spokeswoman, said her company follows the drug-testing guidelines outlined by the state, though she noted the company preferred not to disclose specific policies.

Rhatigan said ImOn officials did not discuss changing those policies when Colorado legalized recreational marijuana in January 2014, and similarly, officials haven’t had those discussions as a result of Illinois’ legalization, either.

Aaron Warner, chief executive officer of Coralville-based cybersecurity business ProCircular, said his company will maintain its “crystal clear” zero-tolerance policy for attending or conducting work under the influence of controlled substances, plus a “strict” drug-testing policy over potential areas of liability and suspicion of intoxication at work.

That being said, Warner continued, ProCircular trusts employees to make “informed, responsible decisions” in their personal lives, and does not conduct random or unannounced drug tests.

“It is neither our desire nor our place to curtail the individual rights of our employees to make their own choices outside of the workplace,” he said in an email. “We anxiously look to labor leaders and state employment offices, both in Illinois and surrounding states, for direction on testing procedures and the formal establishment of ‘system neutral’ THC levels to aid us in developing modern workplace policies.”

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Marketing communications agency Plaid Swan, which has offices in Cedar Rapids and Dubuque, reserves its drug tests for “just cause,” said founding partner Betsy McCloskey. This could include testing if an employee has demonstrated erratic behavior or dramatic mood swings at work, or has inexplicably fallen asleep on the job, she said.

McCloskey said Plaid Swan will wait to see “where everything lands” with marijuana in Illinois and then consider revisions to its workplace policy handbook.

The company also has had “general discussions” with its insurance providers, seeking guidelines on policy changes to address both recreational and medical marijuana, she said.

The insurance providers, and whether any policy revisions could affect the coverage they’ll provide, will determine Plaid Swan’s path forward, McCloskey said.

For example, if an employee is involved in a car crash on the job and tests positive for THC, “the insurance company could say ‘We’re not covering it because it’s in their system and it’s illegal in the state,’” she said.

What about medical marijuana?

Iowa’s medical marijuana program, too, has prompted companies to take their drug policies in different directions.

When it comes to working patients, some companies — often those in the medical field or with employees based out of a corporate office — tend to offer accommodations, said Lucas Nelson, general manager of medical marijuana firm MedPharm Iowa.

Other companies, such as those dealing with logistics, manufacturing and especially vehicles, are more stringent.

Because of challenges in testing for impairment, Nelson continued, “Some businesses are choosing to simply ignore (marijuana in their policies) and not deal with it because of that troublesome aspect, which maybe means there are people out there who would be interested in or benefit from the (medical) program who, because of their employment, can’t.”

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Plaid Swan’s McCloskey said her company would accommodate an employee using medical marijuana to treat a condition the same as it would an employee with any other disability.

“We welcome people who have medical situations, and we try to be as equal opportunity as we can,” she said. “If they could show us everything they were doing was legal, if it was through their doctor and it was justified for their health and well-being, then we would be onboard with that.”

Different states take different approaches

Though Illinois’ new law still lets companies create and enforce “zero-tolerance” workplace drug policies, that state’s existing Right to Privacy in the Workplace Act prohibits them from firing or refusing to hire individuals who use “lawful products off the premises of the employer during nonworking and non-call hours.”

Illinois companies can discipline employees based on a “good-faith belief” that they’re impaired or under the influence of marijuana at work, though the employee first must be allowed a “reasonable opportunity” to contest that determination.

In Iowa, where marijuana remains illegal under federal law, the state’s “drug-free workplaces” statute protects employers from legal action if they discipline or fire an employee who has tested positive for marijuana.

That protection covers employers even if the positive test results from an employee’s use of legal medical cannabidiol products, said Wilford H. Stone, who specializes in labor and employment law with Cedar Rapids-based firm Lynch Dallas.

McCollough, of Davis Brown, said that “carveout” could give employers some comfort in adopting more restrictive policies, but it is untested in Iowa courts.

“In looking at other states that have come before us with similar laws, that didn’t change the fact that litigation could still occur,” she said. “(An employee) could try to make a claim that they’ve been discriminated against because of a disability.”

Stone said he sees Illinois’ workplace marijuana regulations as a “reasonable compromise” but does not believe Iowa lawmakers will take action on similar measures any time soon.

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“Until we have further experience from our surrounding states, I bet there isn’t going to be any appetite for that here in Iowa,” he said.

At the federal level, though the Americans with Disabilities Act requires employers to make “reasonable accommodations” for employees with disabilities, the law does not protect use of illegal drugs — how marijuana still is federally classified.

The Drug Free Workplace Act mandates that companies have drug-free policies if they receive federal contracts of $100,000 or more or federal grants of any size.

With the trend of states approving marijuana both for medical and recreational use, Wennerstrom said the legal landscape is changing quickly, to the point of being a “moving target” for employers, especially those with locations in multiple states.

“When all is said and done, employers must balance maintaining a safe workplace for employees and protecting an employee’s rights,” she said. “At the end of the day, establishing a well-defined company policy is the best course of action to minimize risk for all parties.”

McCollough said most employers already address other legal substances that can cause impairment, like alcohol, and marijuana is likely to become a similar staple of workplace policies.

“While this seems like this big, scary idea now because it’s something new, it will be manageable, it will be solvable,” she said. “It’s just a new policy for them to get used to putting into practice with consistency in their employment setting.”

Comments: (319) 398-8366; thomas.friestad@thegazette.com

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