What Every HR Manager Needs to Know About the Impact of Marijuana Legalization

With the conclusion of the 2018 midterm elections, Michigan became the 10th state (including District of Columbia) to legalize the recreational use of marijuana. In addition, voters in Utah and Missouri approved marijuana legalization for medical use, bringing the total number of states where medical use is legal to 33.

Social acceptance of marijuana legalization is growing. A 2017 Gallup poll revealed that 64% of the country believes marijuana should be legal, the highest level in nearly a half-century of polling. As a result, employers can expect to see a continued climb in the number of states legalizing pot.

Challenges for employers

The growing support of cannabis use for both medical and recreational purposes poses many challenges for employers.

Safety and productivity

The prospect of employees under the influence of marijuana raises concerns about absenteeism, productivity and workplace safety. Marijuana use in the workplace has been linked to an increase in occupational accidents and injuries due to short-term effects of the drug, such as memory issues, impaired sense of timing, decreased reaction time, altered problem-solving capabilities, changes in sensory perception and impaired body movements.

Healthcare cost increases

According to a study reported in the National Bureau of Economic Research, legalization increases both marijuana use and marijuana abuse/dependence in people 21 or older. It is also associated with an increase in adult binge drinking (defined as the number of days in a month an individual had five or more drinks on the same occasion).

The study’s authors note that the observed increase in frequency of adult binge drinking, along with an estimated increase in the probability of simultaneous use of marijuana and alcohol, suggests that legalization could result in “considerable economic and social costs from downstream health care expenditures and productivity loss.”

Woman smoking marijuanaHiring

Even before the economy was at full employment, many companies were having trouble filling open positions. Often, the barrier to hiring was finding candidates who could pass drug testing. “Legalizing marijuana is going to increase the number of people who cannot pass pre-employment and random drug tests,” said Kristy Duritsch, executive director for the Safety Council of Southwestern Ohio. “It’s also going to add to turnover rates.”

In Colorado, one of the first two states to legalize recreational marijuana, employers have begun hiring from other states after being unable to find in-state residents who can pass drug tests, according to HRTechnologist.

Some companies are abandoning drug testing altogether. A 2017 survey by Mountain States Employer’s Council found that of the 609 Colorado employers they surveyed, the percent testing for marijuana fell to 66% from 77% the prior year. “That’s disturbing from an employer’s perspective,” says Paul Bittner, partner at Ice Miller law firm. “You don’t want people coming to work under the influence of a drug. You not only lose productivity, but the bigger concern for employers is potential liability if there’s an accident and someone gets hurt or killed.”


Another issue employers will have to tackle is the possibility of lawsuits if employees feel they have been discriminated against, especially for medical marijuana users.

A frequently noted case is that of Brandon Coats, a quadriplegic with a Colorado state-licensed medical marijuana certificate. He worked as a telephone customer service representative for DISH Network. Coats tested positive for THC, an indicator of marijuana use, during a random test and was terminated for violating the company’s zero-tolerance drug policy.

The case was ultimately decided by the Colorado Supreme Court, which determined an employee could be fired for consuming medical marijuana. This might sound surprising since Colorado’s off-duty conduct laws offer statutory protection for employees who engage in lawful activities outside of work. Since marijuana is legal in Colorado, consumption is a lawful activity in the state. However, the court held that “lawful” refers to activities that are lawful under both state and federal law, and marijuana remains illegal under federal law. Therefore, the off-duty statute does not protect employees who consume medical marijuana.

“Legalizing marijuana is going to increase the number of people who cannot pass pre-employment and random drug tests

What should employers do?

Bittner refers to Coats v. DISH Network as the “go to” case. “If you have a drug-free workplace policy, I would not change it,” he says.

Employers operating in a state where marijuana is still completely illegal can change their drug policies and address the use of marijuana directly. “Write policies that let your employees know that disciplinary action will take place and violations could lead to termination,” says Bittner. Employers should double-check to ensure their company is complying with the Drug- Free Workplace Act of 1988 and any state laws that may affect drug testing.

If you are federally funded or have federal contracts, you must still abide by the Drug-Free Workplace Act.

As more states legalize recreational marijuana, there has been some confusion as to whether employers can stick to existing drug testing and personal conduct policies. Do employers need to accommodate an employee’s use or possession of the drug? What should employers do if an employee tests positive for marijuana?

Bob Capwell, Chief Knowledge Officer at Employee Background Investigations, offers this advice: “Employers need to review their company policies as they relate to changing legislation and where they provide services. States that have reasonable accommodation laws for medical marijuana cardholders such as Arizona, Connecticut, Delaware, Maine, Minnesota, Nevada, New York and Rhode Island are problematic and a concern for employers with blank prohibitions on medical marijuana users.”

States with legalized recreational marijuana all have exemptions for workplace drug policies. However, medical marijuana use at the workplace is less clear. A California court recently reaffirmed that an employer still maintains the right to discipline employees even where the marijuana use is recommended by a physician. In Arizona, on the other hand, an employer may not discriminate in any way against a certified medical marijuana patient who fails a drug test, unless the individual used, possessed or was under the influence of marijuana while at work, or unless failure to take disciplinary action would cause the employer to lose a financial or licensing-related benefit under federal law.

Some states afford protections to registered medical marijuana users and may require that employers engage in an interactive process to see if a reasonable accommodation can be made.

“As a practical matter, this means that if an employee in one of these states is using marijuana with a medical card, employers cannot fire them on that basis. However, if an employee is using marijuana recreationally, the employee’s job would not be similarly protected,” said Jill Cohen, attorney at Eckert Seamans Cherin & Mellott.

In the majority of states, employers don’t have to make accommodations, even for off-duty medicinal use. Federal employers like DOT have no obligation to accommodate marijuana use.

However, employers don’t have to tolerate employees under the influence while on the job, even if a worker is using marijuana for medical reasons. So accommodations might include additional time off or a leave of absence for the period the worker needs to use the drug.

The underlying issue is that a medical marijuana cardholder may have an independently qualifying medical condition. Therefore, employers may want to engage in an interactive process even if the law does not require it, according to Rachel Schumacher, an attorney with Akerman in Los Angeles.

“Workers need to know that they can’t have an edible at lunch and come back to the office”

For some employers, the obvious way to enforce a zero-tolerance policy is to conduct random drug testing, but this is easier said than done. Unlike a Breathalyzer test for alcohol, which yields precise results for impairment, there is no definitive way for employers to determine an employee’s level of impairment from marijuana. Routine tests for marijuana yield a lot of false positives and negatives because marijuana can take a long time to be metabolized out of a user’s system.

Then there is the question of privacy rights. Personal testing is often very invasive, so employers need to strike a fine balance between employees’ privacy and workplace safety. Marijuana users applying for or working in positions that are under DOT regulation are subject to federal guidelines and have limited or no rights.

Employers must decide how strong of a position they want to take as a company. If you’re a safety-sensitive or federal contractor, you may not have a choice. But for other employers, mandatory drug testing sends a clear signal.

Employers who feel strongly about their workforce steering clear of marijuana use must clarify their position with a clear company policy that outlines the expectations and consequences of a positive test. As long as an employer has enforced a prohibitory policy at the workplace, the employer will reserve the right to legally terminate an employee for their use of recreational marijuana.

Employers who want to take a more liberal approach may want to communicate to workers that even though it’s legal to recreationally use marijuana, being under the influence at work is unacceptable. Workers need to know that they can’t have an edible at lunch and come back to the office, said Schumacher.

Finally, be sure to train managers on how to deal with potential use on the job or “for cause testing” on the job, along with the ability to identify signs of using at work.

About Espyr

Espyr is a leading behavioral health company. Our mission is to help our client organizations and their employees achieve their full potential.  As part of this mission, we help clients and their employees deal with drug and alcohol abuse issues and provide management consulting to HR teams on related intervention services. For more information on Espyr, call us at 866-570-3479 or go to espyr.com.





Workplace Drug Use: Think It’s Not A Problem For You?

If today’s employers are finding that employee engagement is especially low, it may be because some of their employees are high. A new study released this summer by Quest Diagnostics, a provider of diagnostic information services, reveals that workplace drug use is the highest it’s been in more than a decade.

While prescription opioid rates have declined sharply across the nation, the on-the-job use of cocaine, amphetamines and marijuana has risen sharply, especially in certain regions. Here are a few specific findings from the Quest Diagnostics study:

  • Cocaine use has increased for the fifth consecutive year, including double-digit year-over-year increases in Nebraska, Idea, Washington, Nevada, Maryland and Wisconsin.
  • Between 2013 and 2017, methamphetamine use has increased 167% in parts of the Midwest, 160% in parts of the South, 150% in areas of the Northeast and 140% in the Southwest.

If you still think drug use has yet to reach your employees, consider these disturbing stats from the National Council on Alcoholism and Drug Dependence:

  • 70% of the estimated 14.8 million Americans who use illegal drugs are employed.
  • Of those 70%, more than 42% admit that their work productivity suffers due to their use.

“The significant drop in opiate use is a promising sign,” said Matt Nieman, General Counsel, Institute for a Drug-Free Workplace. “Yet, the ten-year high rates serves as a stark warning that efforts to prevent substance abuse in the workplace are as important today as ever.”

The Opioid Problem is Not Over

The drop in opioid use doesn’t mean the opioid problem has gone away. Opioid prescriptions have nearly quadrupled since 1999, according to the Centers for Disease Control and Prevention. While the drugs legitimately help people manage pain, they are also still very addictive. The National Institute on Drug Abuse provides plenty of scary facts to illustrate our point:

  • Roughly 21 to 29% of patients prescribed opioids for chronic pain misuse them.
  • Between 8 and 12% develop an opioid use disorder.
  • An estimated 4 to 6% who misuse prescription opioids transition to heroin.
  • Every day, more than 115 people in the United States die after overdosing on opioids.

Drug Use is Expensive, Too

These trends aren’t just disturbing on a human level. They’re costing employers – and society at large – a lot of money. Crain’s Detroit Business points out that, in 2013, opioid abuse alone cost businesses $16.3 billion just in disability claims and lowered productivity.

Tess Benham, of the National Safety Council, reminds us there’s also a high cost in absenteeism. Where the average worker misses about ten days per year, those abusing pain medication or using heroin miss an average of 29 days of work per year.

When you consider the combination of lowered productivity, higher health care, substance abuse treatment costs and missed work, you have a total economic burden of $78.5 billion, according to the National Center for Injury Prevention and Control. Curtis S. Florence, who led the research, adds, “And that’s definitely a conservative estimate.”

What Can Employers Do to Help?

Common sense says that employers need to be part of the solution. First, however, they need to admit there’s a problem. In a survey by the National Safety Council, seven in ten employers reported on-the-job drug abuse issues ranging from absenteeism to overdose. Yet, only 24% said it was an issue.

The National Council on Alcoholism and Drug Dependence  has some clear, practical advice for employers, all centered on encouraging and supporting treatment. Here are some specific ways they say employers can address substance use and abuse in the workplace:

  • Implement a drug-free workplace and other substance abuse policies.
  • Offer health benefits that provide comprehensive coverage for substance use disorders, including aftercare and counseling.
  • Reduce the stigma of getting help through education and communication. You can read more about steps we’ve seen work in this blog on Reducing The Stigma Of Mental Health.
  • Educate employees about the health and productivity hazards of substance abuse through company wellness programs.

While all these policies and programs will help, the NCADD has one strong recommendation. “ “Without question, establishment of an Employee Assistance Program (EAP) is the most effective way to address alcohol and drug problems in the workplace,” says the NCADD. “EAPs deal with all kinds of problems and provide short-term counseling, assessment and referrals for employees with alcohol and drug abuse problems.”

At Espyr, we also understand the power of EAPs. But as a leading behavioral health company we’re continuously innovating to find new solutions to behavioral health issues. For example, we’re leading the way with a suite of coaching programs to encourage employees to ask for help when they need it or when traditional counseling isn’t required. We’ve developed innovative new approaches like Spotlight™, a behavioral health coaching and proprietary data analytics platform. Spotlight is able to proactively identify and aid employees (and their dependents) that may need assistance with drug abuse and other healthcare issues. It can more than pay for itself in reduced absenteeism, increased employee engagement, increased employee retention and a reduction in healthcare costs of up to 20%.

Espyr is offering Spotlight with partners such as Fairbanks Employer Services, one of the oldest and most highly regarded alcohol and drug treatment centers in America. With this new marketing partnership, Fairbanks will offer this technology to their portfolio of client companies under the name Fairbanks Spotlight™.

For more information on how Espyr can help you achieve a drug-free work environment, call Espyr at 866-570-3479 or go to espyr.com.


Five Steps Businesses Need To Be Taking Now To Address The Opioid Crisis

According to the CDC, 115 people die in the US everyday of opioid overdoses. That’s more than from car accidents, gun violence, and most forms of cancers. Opiate related overdoses are now the leading cause of death in Americans under the age of 50.

Though it seems we’re confronted with news about the opioid crisis wherever we turn, the situation isn’t getting any better. In the past year, ER visits for opioid overdose nationally rose nearly 30%.   How does this mounting crisis impact your business and what should you be doing about it?

“…the combination of lower productivity, higher healthcare and substance abuse treatment costs, missed work and other opioid related issues add up to $78.5B….”

The first step in solving a problem is admitting you have one, and here businesses may be missing the boat. In a National Safety Council survey, 39% of employers viewed prescription drug use as a threat to safety and just 24% said it is a problem, even though seven in 10 companies reported issues ranging from absenteeism to overdose. In fact, the combination of lower productivity, higher healthcare and substance abuse treatment costs, missed work and other opioid related issues add up to $78.5B according to the National Center For Injury Prevention and Control.

The situation has gotten so bad for businesses that the Federal Reserve found that employers were finding it difficult to fill open positions, partially due to a skills gap but also because many applicants couldn’t pass a drug test.

There are steps you should be taking at your business to address this crisis. Nick Otto’s article, Opioid Treatment Costing Employers Big identifies three responsibilities that businesses have according to Michael Thompson, president and CEO of the National Alliance of Healthcare Purchaser Coalitions

  1. Educate employees about opioid misuse – Currently, only 24% of companies provide training and education to employees in opioid use according to a recent National Safety Council survey. When it comes to educating employees, Thompson says issues to consider include proper storage and disposal of prescription medications, the dangers associated with sharing opioid medication with others, the need to ask questions of their providers if prescribed opioids as well as clarifying a clear path for how employees or their families can seek help and treatment if they are concerned about addiction or dependency.
  2. Employers need to review their programs and policies to better align with the collective opioid agenda. “Programs and policies are being relooked at to ensure appropriate coverage and support, while better defining expectations for both supervisors and employees,” Thompson says. “Employers should set expectations for EAPs, health plans and prescription drug managers to play a more systematic role to identify potential opioid misuse and take actions to help address systemic issues and support employees and their families who have opioid issues.”
  3. Engage with your health plans and PBMs to ensure they do their part. Employers are demanding and now getting more data from their health plan or data warehouse vendor and diving deeper to understand the impact of drugs on their population. Because of this, employers and PBMs are beginning to make progress to reduce the risk of overdose. They’re reducing barriers to medication assisted treatment and limiting the opioid dosage prescribed to individuals. A recent benchmarking survey last year from the Midwest Business Group on Health found most employers indicating that they are changing their pharmacy benefit design by putting restrictions on opioid prescriptions, using prior authorization and quantity limits (as low as a 5-day supply) and more advanced utilization management rules, notes Cheryl Larson, president and CEO of MBGH.
  4. Another step gaining proponents is the use of a segmented and data analytics approach to opioid abuse. Products such as Espyr’s Spotlight™ use data analytics to provide insights that enable managers to identify potential problems proactively. For example, Spotlight could identify the co-existence of conditions closely associated with opioid abuse and act as an early warning system for a potential problem.

Last, your EAP should be an active partner to you in your efforts. David Pawlowski in his recent article, Opioid-use disorders: The role of the employee assistance program points out the vital role that EAPs can play if their programs are built and positioned correctly.

1) Position the EAP as the entry-point for all mental health and substance abuse services. Employees with an opioid-abuse problem require a significant level of advocacy and support. Consider putting the phone number for the EAP on the company insurance card, with language that steers all employees seeking help for a mental health or substance abuse problem to the EAP first. Similarly, ensure that customer service representatives, benefits specialists and any other internal or external health plan experts or advocates are trained to refer employees to the EAP for assistance. The EAP should spearhead and deliver this external training initiative.

2) Ensure all calls into the program are answered live 24/7/365 by a licensed, experienced clinician. When an employee with an opioid-abuse problem calls the EAP, the first person he or she speaks with must be an expert. With opioid abuse, problems escalate quickly and crises are common. In most cases, the window of opportunity when an opioid user is receptive to help is short. An experienced clinician can reinforce the positive steps an employee is taking and use evidence-based strategies to enhance motivation to change and increase the likelihood that the employee will follow through with treatment.

3) Confirm that the EAP conducts a comprehensive mental health and substance abuse assessment for every participant. Stigma is real, and employees often minimize their problems. A comprehensive clinical assessment that includes evidence-based screening tools will ensure that no underlying issues are missed. Then, based on the assessment, the EAP clinician can work collaboratively with the employee to develop the most clinically appropriate care path – and provide guidance to the highest-quality and most cost-effective, in-network treatment options. By ensuring employees always receive referrals to the ‘right’ providers and facilities the EAP can have significant and measurable impact on healthcare costs.

4) Ensure that your EAP has a clinical orientation and can provide a warm hand-off to your medical plan. Opioid abuse or addiction will likely require longer-term and more highly structured treatment plans than typical EAP problem resolution. That means using resources within the employee’s medical plan. A variety of treatment options are available to battle opioid abuse, including detoxification, inpatient rehabilitation, outpatient behavioral health counseling and medication assisted treatment. Often, the most effective solution is a combination of multiple treatment types. By ensuring a secure, warm hand-off from the EAP, the employee’s case continues to be handled appropriately from start to finish. When addressing opioid addiction, the importance of ongoing case management at every stage of the treatment process cannot be overstated.

Your EAP can also be an organizational resource to assist employers who wish to take a more proactive role in addressing issues related to employee opioid use and abuse. The following are just a few of the many ways that an EAP can support the organization:

  • HR/management consultation
  • Drug-free workplace policy development
  • Employee and supervisor education and training (including ‘reasonable suspicion’ training)
  • Formal management referral services
  • Substance abuse professional services (for employees whose job duties fall under federal Department of Transportation regulations)

The opioid problem is large and not showing signs of receding. Don’t assume your business or your employees are immune. They’re not. You may not be able to fix the problem, but taking the steps noted here will help you manage it and lessen it’s impact on your business.

To learn more about Spotlight or Espyr’s innovative EAP call 866-570-3479 or click here.

Espyr® Announces Major Marketing Partnership with Fairbanks

Partnership To Bring Next Generation Behavioral Health Management Program To Fairbanks Employer Relationships

Espyr, the leading behavioral health company developing innovative solutions for maximizing human and organizational potential, and Fairbanks, one of the oldest and most highly regarded alcohol and drug treatment centers in America, have agreed on a marketing partnership where Fairbanks Employer Services will help market Espyr’s Spotlight™ to Fairbanks’ portfolio of client companies. The product will be marketing under the name Fairbanks Spotlight™.

Spotlight is a state-of-the-art behavioral health management program specifically designed for self-insured employer groups of 500 or more. Using proactive behavioral health coaching and proprietary data analytics, Spotlight is able to identify and aid employees and their dependents that may need assistance.

Spotlight can reduce healthcare costs by up to 20%

Spotlight is a totally new and innovative approach to Behavioral Health. Spotlight’s impressive benefits more than pay for itself: reduced absenteeism, increased employee engagement, increased employee retention and a reduction in healthcare costs by up to 20%.  To learn more about Spotlight click here.

In announcing the partnership, Espyr CEO Rick Taweel stated, “ We are delighted to be partnering with such a well respected and successful organization as Fairbanks. Fairbanks recognized the benefit of using Spotlight to identify and address behavioral health issues in treating, and more importantly, preventing substance abuse problems. Spotlight is a perfect complement to the services they already provide to their many employer relationships.“

To learn more go to Fairbanks Employer Services.