How Construction Managers Can Deal With Changing Marijuana Laws

On Dec. 2, the U.S. Drug Enforcement Agency will hold a hearing on whether marijuana should be reclassified as a Schedule III drug. That would remove it from Schedule I — which includes heroin, LSD and ecstacy — and reshelf it alongside Tylenol with codeine and anabolic steroids. 

The proposed downgrade is part of a broader trend of more lenient marijuana regulation in the U.S. There are now only four remaining states — Idaho, Kansas, South Carolina and Wyoming — where any form of marijuana use is still against the law, according to Houston-based drug testing and employee screening firm DISA Global Solutions.

“Two years from now, I’d be surprised if we’re not 100% legal,” said attorney Trent Cotney, a partner and construction team co-leader in the Tampa, Florida, office of Adams and Reese, who specializes in cannabis regulation and employee drug testing in construction. “It’s coming that quick.”

States’ progression toward decriminalizing marijuana has accelerated since 2012, when Colorado and Washington state simultaneously legalized recreational use. But the drug remains illegal at the federal level, and even if the DEA’s proposed rule change wins approval, it would still only be available for medical use.

The changing legal tapestry combined with requirements for testing in some federal contracts have vastly complicated construction employers’ approaches toward pre-employment, on-the-job and post-incident cannabis testing, especially in states with laws that protect workers’ off-duty marijuana use. 

For example, in New York, employers cannot test workers for marijuana either in the hiring process or once they are on the job. And where testing is still legal, widely used urine and hair analysis present other issues, since they don’t detect actual impairment, just traces of cannabis that can stay present for days or weeks after consumption when a person is completely sober. 

In an industry where an impaired worker on the jobsite could endanger the lives of themselves and others, those developments have left construction employers in a difficult position. 
“In high-risk industries like construction, it’s such a challenge for employers to just figure out what to do to keep the workplace safe, but still comply with all of these laws that protect marijuana usage while the person is off duty,” said attorney Kathryn Russo, a principal in the Long Island, New York, office of Jackson Lewis who focuses on workplace drug and alcohol testing under federal, state and local laws.

To read the reast of this story from our sister publication, Construction Dive, click here.