Effective Cannabis Testing in the Workplace: No, We’re Not There Yet

Determining when an employee took cannabis and to what degree they are impaired are challenges for employers and public safety agencies alike.
By: | June 10, 2019

It might be called the cannabis conundrum. As more states have legalized or are moving toward legalizing both medical and recreational cannabis, companies across the country are weighing how to accurately determine whether employees are impaired by cannabis in the workplace.

The issue seems pretty straightforward except for a major problem: There is not currently an effective method of real-time quantitative testing of cannabis impairment.

Medical marijuana is currently legal in 33 states and in Washington D.C. Recreational marijuana is allowed in 10 states and at least 10 more are considering legalizing it in 2019 with more expected to follow in 2020.

Cannabis: In Brief

Recreational marijuana is defined as any marijuana use without medical justification. It typically contains THC, which is the chemical responsible for marijuana’s psychoactive effects. In states where it is legal, medical marijuana is only considered “medical” if it is dispensed to a qualified patient from a medical marijuana treatment center or dispensary.

As legalization by states spreads, marijuana’s popularity is on the rise. It is estimated that recreational sales of marijuana were about $1.55 billion in the U.S. in 2016 and will reach $8.7 billion by 2021, according to Statista.

Sales of medical marijuana are expected to increase from between $3.1 and $3.7 billion in 2017 to between $4.9 and $6.1 billion by 2022.

This growth is occurring even as cannabis continues to be outlawed by the federal government, which classifies it as a Schedule 1 drug, the same as heroin, LSD or ecstasy. A Schedule 1 drug cannot be prescribed by a doctor or dispensed by a pharmacy.

Mary Kay O’Neill, physician and partner, Mercer

Before a drug can be labeled as medication, the Federal Drug Administration requires clinical tests on hundreds to thousands of human subjects to determine the benefits and risks. Those tests have not been done for cannabis.

“Because it is classified as a Schedule 1 drug there is just not a body of research about the effects of cannabis like we have with other things,” said Mary Kay O’Neill, a physician and partner at Seattle-based Mercer, a global consulting firm that helps clients advance the health of their employees.

“There’s experience with it, but not rigorous studies.”

Determining Impairment

Unlike alcohol, which is water soluble and allows for testing to determine current impairment, cannabis is stored in the body’s fat and is released into the bloodstream over a long time. That means an employee who used cannabis a few days or even weeks ago may still have it in their body but not be impaired.

“The challenge with marijuana is determining when it was used,” said Denise Algire, director, risk initiatives and corporate risk management for Albertsons, a nationwide grocery store chain.

“I don’t know that there has been a good resolution.”

Despite what states are doing, Algire, who is expressing her own opinions, not Albertsons, pointed out that employers have a federal mandate under Occupational Safety and Health Administration rules to address impaired workers who contribute to unsafe work environments.

“I think it is a big concern for us, for our employers,” said Melissa Burke, PharmD, Head of Managed Care and Clinical for AmTrust Financial.

“The risk of impairment on the job puts everyone that is in that workplace at risk,” she said.

The current methods for testing for cannabis include hair, urine, saliva and blood testing — all of which are problematic for various reasons including being invasive and taking time to administer and to get results. They also don’t indicate real-time impairment.

“They can be indicative of impairment, but they won’t definitely confirm impairment,” said Kelly VanBuskirk, an attorney with Lawson Creamer, a law firm specializing in labor and employment in St. John, New Brunswick, Canada. Recreational cannabis was legalized nationwide in Canada in 2018.

“We’re in the same boat you are,” said VanBuskirk of Canadian employers and public safety agencies. “There is still a question mark hanging over the issue of determining impairment.”

Testing Advancements and Prototypes

Some solutions seek to create a field test similar to the portable breathalyzer that detects alcohol in a person’s system.

Michigan State Police, motivated by an increase in drug-impaired traffic fatalities, operated a pilot program from 2017 to 2018 in five counties using the Alere DDS2 Mobile Test System, a roadside saliva test, for when impaired driving was suspected. It revealed a positive, negative or invalid result for the drugs being tested, including cannabis. The police also conducted secondary blood testing to validate results.

“Even if blood or saliva levels of THC can be accurately measured, there is still not agreement in the research literature about what those levels mean for impairment.” — Mary Kay O’Neill, physician and partner, Mercer

A total of 92 roadside tests were conducted during the year-long pilot, and 74 were positive for THC. Eleven tests were not confirmed by blood analysis, which drew some criticism. Even so, the state is proceeding with an expanded pilot program.

Kathy Stitzlein, president and CEO of Triple Beam Technologies, is developing the Cannibuster, a product which she believes will be able to measure the exact level of THC in a person’s saliva.

The Cannibuster is a handheld device with a disposable test cartridge that isolates and measures the level of THC in a person’s system in as little as 10 minutes. The company is currently producing pre-production units and expects to begin clinical trials and field testing in 2020. What level of THC constitutes impairment is an open question.

“There is a lot of research to be done in the scientific community to determine what constitutes impairment and how we can objectively define that,” Stitzlein said.

O’Neill agreed: “Even if blood or saliva levels of THC can be accurately measured, there is still not agreement in the research literature about what those levels mean for impairment — either medically or legally,” she said.

“We encourage employers to maintain a safe work environment. At this point we don’t have guidance on what level of cannabis would equate to impairment,” said AmTrust’s Burke.

Some states, including Colorado and Washington, have defined the legal limit for driving under the influence as five nanograms of active THC in the blood. Nevada has defined it as two nanograms.

A Denver-based company, Predictive Safety SRP, is taking a different approach. It produces the AlertMeter, which is used to detect fatigue in employees. It has found some companies are using it to determine fitness for work regardless of cause.

The AlertMeter displays 30 graphic items and takes 60 to 90 seconds to complete.

Once a baseline is established, the user is asked to determine whether all shapes are the same as they rotate. If they are all the same, the user clicks a green button indicating so.

If a shape is different, the user clicks on that shape. The test records response times and accuracy.

Read More: Why Marijuana Impairment Testing Must Be Made a Priority in Workers’ Comp

“It allows an employer to know if an employee is not behaving in their normal range, but it can’t say why,” said Carol Setters, vice president of business development, Predictive Safety.

“They could’ve just smoked a joint out in the parking lot or they could’ve been up all night with a sick child.”

While it can’t isolate a source of impairment, a test result that’s not within an employee’s normal range can spark a conversation.

“That’s when a safety conversation ensues that allows a company to get to the bottom of it,” Setters said.

As research continues to develop an effective way of testing for cannabis impairment, Algire said companies are well advised to track what other states are doing regarding legalization of cannabis and recent court decisions related to cannabis in the workplace.

“It’s an ever-changing issue,” she said.

“The minute I think we’ve got something figured out, it changes.” &

Annemarie Mannion is a freelance writer. She can be reached at [email protected]

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