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March 2017 • www.CPAPracticeAdvisor.com 31 THE LABOR LAW ADVISOR Marijuana in the Workplace: What Employers Need to Know The trend is strongly favorable for even more widespread growth of such laws. In certain areas of the country, employers are already finding it difficult to hire persons who can pass a pre- employ ment dr ug test. And once employees have been hired, many manufacturing employers are finding that substantial numbers of employees either fail random or post-accident drug screens, or simply quit if asked to take such a test. Although always a challenge, finding and keeping qualified and pro- ductive employees has become only more challenging. It is difficult to definitively quantify the effect marijuana use has on produc- tivity and safety, but, according to the National Institute on Drug Abuse, part of the National Institutes of Health, studies have suggested links between marijuana use and negative conse- quences in the workplace, such as a higher risk for injury or accidents. One study found that postal workers who tested positive for marijuana on a pre- employment drug test had 55-percent more industrial accidents, 85-percent more injuries, and 75-percent greater absenteeism compared with those who tested negative for marijuana use. On top of this, federal and state agencies are making it increasingly dif- ficult to enforce strong drug free policies. For example, the Occupational Safety and Health Administration ("OSHA"), the federal agency that enforces work- place safety, recently issued new guidance explaining that some post-accident drug testing programs may unlawfully deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. With the proliferation of legalized marijuana among the states, the wide- spread use among employees that these state laws encourage, and changing positions from enforcement agencies, now is a good time for employers to review their drug testing policies and adapt to the changing legal landscape. The Growing Acceptance of Marijuana Use As mentioned, more than one-half of the United States has legalized some form of marijuana use. In fact, with the addition of California, Massachuses, Maine, and Nevada, now more than 20-percent of all Americans live in a state where recre- ational marijuana use is legal. Despite the increase in legalized marijuana, it is still illegal in many states and, importantly, under federal law. Along with the federal Controlled Sub- stances Act, which classifies marijuana as a Schedule 1 drug along with LSD and heroin, a number of different federal laws can impact employers, employees, and their drug policies. Such laws include the Drug-Free Workplace Act and U.S. Department of Transportation regula- tions. OSHA and Post-Accident Drug Testing In recent months, OSHA has caused a stir among employers with comments related to post-accident drug tests. Effective December 1, 2016, new OSHA reg ulations require employers to establish a "reasonable procedure" for employees to repor t work-related injuries and illnesses promptly and accurately. ese regulations prohibit this procedure from deterring or dis- couraging a reasonable employee form accurately reporting a workplace injury or illness, and prohibit any retaliation for reporting an injury or illness. Richard D. Alaniz is senior partner at Alaniz Schraeder Linker Farris Mayes, L.L.P., a national labor and employment firm based in Houston. He has been at the foreont of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts equent seminars to client companies and trade associations across the country. Questions about this article, or requests to subscribe to receive Rick's monthly articles, can be addressed to Rick at (281) 833-2200 or ralaniz@ alaniz-schraeder.com . M aintaining dr ug-free work- places has long been the rule for American industry. In fact, it is mandatory under federal and state law in many instances. Now, given the reality of increasing marijuana legalization, assuring that its presence in the workplace and the impairment that it causes is prevented has become a critical concern for many employers. Never before have employers faced such widespread acceptance of behavior that is so glaringly at odds with workplace safety. All told, 28 states and the District of Columbia have legalized marijuana use in some form. WHAT TO DO NOW • Review Your Company's Drug Testing Programs. • Look Into Oral Fluid Testing. • Stay Up-to-Date on OSHA's Actions. • Update and Communicate Policies. • Train Managers and Supervisors. CONTINUED ONLINE AT: www.CPAPracticeAdvisor.com /12307330