On Nov. 7, 2023, voters in Ohio approved the use of marijuana for residents aged 21 years or older, making it the 24th state to legalize recreational marijuana. The new law, which took effect Dec. 7, 2023, permits the sale, purchase, possession, use and home cultivation of marijuana.
Unlike other recent state laws, such as in California, Washington, Minnesota and Delaware, Ohio’s new marijuana law does not require the employer to “accommodate an employee’s use, possession or distribution of cannabis.” Employers are permitted to continue enforcing drug screening policies and drug-free workplace programs. This departs from a growing trend to provide legal employment protection of employees and impose limitations on employers regarding marijuana use. For example, on May 9, 2023, Washington state approved legislation prohibiting employers from discriminating against a person in hiring based on off-the-job, legal, recreational use of cannabis. As with similar laws in Minnesota and Delaware, among others, the law is complicated and difficult to interpret.
One thing is clear: The movement to legalize marijuana for medical and recreational use has accelerated since 1996, when California became the first state to legalize medical cannabis. In 2012, Washington and Colorado were the first states to approve legal recreational use.
Federal U.S. law still prohibits the use and possession of cannabis/marijuana for any purpose, but 38 states (and Washington, D.C.) have passed laws to legalize the drug for medical purposes, and 24 states and the District of Columbia sanction its recreational use.
Insufficient Test Results
Since this is a critical issue to wall and ceiling contractors, where safety of people and property is a major daily concern, we reached out to AWCI members to find out how they are affected, whether they are changing policies in view of state legislative changes, and how they are enforcing the policies they have in place.
We began by asking what the situation was regarding marijuana and the workplace in their area, and what policies they had in place for their companies, regardless of state legislation.
As someone affected by the recent change in the law in Ohio, Adam Navratil, partner and CFO at J&B Acoustical Inc. in Ohio, says, “Ohio has just voted to legalize adult use of recreational marijuana. The state of Ohio Bureau of Workers Compensation still recognizes the zero-tolerance drug policy established before the recreational legalization (medicinal use was already legal).
“We treat recreational marijuana use as we do alcohol,” he continues. “The problem we have with marijuana use is that current testing methods just return positive or negative results with no good way to determine if the use was during business hours or days or weeks in the past. We are holding steady with our pre-legalization policy that marijuana is not allowed during work hours. We are hoping that new testing methods will identify more definitive timelines of use and become less expensive and more mainstream to help with the situation.”
Bobby Skyles, director of human resources at Marek in Texas, says, “Our policies still prohibit the use of marijuana, given most of our people are working in safety sensitive roles. I believe that in states where medical marijuana is legal, if a person has a valid medical prescription and it is provided to the MRO (medical review officer) that certifies the drug test results, their test results would be published as negative even if there was THC in their system.
“From a safety standpoint, our position would still be that they could not be under the influence while working. It is similar to opioids—you might have a prescription, but you can’t work while being potentially impaired. Our policies toward marijuana have not changed even as more states legalize it. Until marijuana testing is advanced and we’re able to test for impairment, not just whether they used it over the prior 30 days or so, I don’t foresee us changing our policies. Additionally, as a subcontractor, we’re typically held to the policy of the GC we work for, so it would most likely take an industry shift for us to change our policy.”
Pat Arrington, owner of Commercial Enterprises, Inc. in New Mexico, has experience with the marijuana issue from his days in the state police. “There is no good way to determine the level of intoxication in the field,” he says. “The saving grace is that insurance companies require no marijuana for insurance purposes. Even the kind you rub on the skin will show up in urine tests.”
Nope, Nope, Nope
A Michigan contractor responded, “In our state, it is legal to use marijuana recreationally and for medicinal purposes. Our company policy prohibits any possession or use of drugs or alcohol on our job sites. We do not plan on changing this.”
“It is against company policies,” says Ken Fox, vice president at Delta United Specialists, Inc. in Tennessee. “We work under the Tennessee drug-free program and receive a credit on our insurance for complying with their regulations.”
“We are not planning on any changes,” he adds. “We drug test new hires and do random testing.”
“We do have some who use marijuana recreationally,” says an Oregon contractor. “Our policy is that none is to be used on the job, the same as alcohol. We do not intend to change.”
Gary Dillman, CEO of Baylor Construction, Inc. in Florida, says, “We are not for it on any job, whether for medical purposes or recreational use. We don’t have any specific policy in place, but it sounds like we should revise our drug policy!”
“Marijuana is one of the drugs we test for pre-employment and post-accident,” says Scott Turczynski, COO at Heartland in Iowa. “Medical marijuana is allowed in our state. If an employee has a medical card allowing them to use it, they are exempt from disciplinary action. Marijuana/cannabis is not an allowed substance on the job site nor in their system. We do not plan on changing this at this time.”
Just Say No
“Marijuana is illegal in Texas, and we regard it the same way in our company,” says Bill Fritz, president of Mission Interior Contracting, LLC in Texas. “Neither alcohol nor drugs are tolerated in our company on any level. We feel that anyone willing to put coworkers in jeopardy through drugs or alcohol use has no place in our company. Construction is a dangerous business that requires everyone to be alert and follow safety protocol. Someone under the influence will eventually cause an incident and may put many others at risk. We will never change this policy because we have a responsibility to keep everyone safe and able to go home to their families and friends at the end of each workday.”
Michael Mazzone, president of Statewide General Contracting and Construction, Inc. in Hawaii, says, “The state of Hawaii has not passed recreational use, yet. Our contract outlined a drug policy back in the 1980s and that is what we are following.”
“No drugs of any kind in the workplace! No exceptions!,” says Rick Wagner, owner of Richard Wagner Enterprises, LLC in North Carolina. “There are way too many dangerous conditions and/or possible situations in construction. We have no plans to change our policies.” Wagner admits that in his younger, rock-band days he had a different attitude, but “… being a party animal 24/7 is a negative thing in your life. Marriage changes you, kids change you. You have to be responsible, and drugs don’t align with a responsible lifestyle. That never changes. It’s the same today. My opinion that you can print is, ‘Only dopes use dope!’”
Adam Barbee, project executive at Daley’s Drywall in California, reports from the state that has been at the forefront of relaxing legislation on marijuana: “The use of marijuana is treated in the same manner as alcohol. You cannot come to work under the influence of drugs or alcohol. Our employee handbook provides policies on marijuana use, including rules on impairment at work, drug testing procedures, consequences for violations and compliance with local laws. We are not planning any change to our policies at this time. We stand firm to the safety of our clients and employees.”
No Excuses
We wanted to know how our member contractors enforce the policies they have in place with regard to marijuana.
David Ruggieri Sr., president of American Interior Construction & Blinds, Inc. in Pennsylvania, says, “We have very specific policy: Marijuana is not permitted on the job site. Enforcement is difficult. If employees are caught using marijuana on-site, it’s a warning the first time. Then if it happens again, it will be termination.
“Only one time did I have this situation, and the employee was so bad we relieved him of his duties on the spot. That’s pretty much the only recourse we have, barring involving the authorities. It’s not an exact science because of the changing environment. However, we strive to maintain the safety of the employee and those around him as much as possible.”
“We drug test for pre-employment and post-accident,” says Wickham. “Any person found in violation is given a 30-day suspension for the first offense. A second offense will result in termination. Unfortunately, we have seen a rise in positive results with our testing since our state laws have changed.”
“Our current policy is one that calls for immediate suspension with a positive test (reasonable suspicion, random or post-accident testing) with a future negative test and drug counseling as a requirement for re-employment,” explains Navratil. “We are looking to modify this to allow work continuation while the counseling happens with a negative test within a reasonable timeline.”
Fox says, “New hires cannot go to work until they have a negative report. Existing hires are given four weeks to furnish a negative test and are restricted from some jobs and tasks.”
Truczynski says, “Use of cannabis is not allowed at work, nor may it exist in their system. If it is found via a pre-employment test, they will not be hired. If found in a post-accident test, they will be disciplined per our policy up to and including dismissal.”
“It’s difficult to enforce other than by random drug testing,” says Fritz. “We encourage our foremen to be alert for someone coming to work under the influence and to notify the office so we can deal with it. During the hiring process, we are adamant about our zero-tolerance policy; violation results in immediate termination of the employee. Any accident is thoroughly investigated at every level.”
Mazzone explains the procedure for his company: “We still have a no-tolerance policy and follow our contract for treatment and release from employment—treatment for first time, and dismissal after that.”
“It’s simple: Comply or you’re fired!” says Wagner. “Being impaired, stoned or not in your right mind is not acceptable. The construction workplace is not a place for drug usage—period!”
“Our company has a detailed new hire/employee handbook that states all company policies and rules, as well as benefits,” says Barbee. “We enforce workplace rules by clearly communicating expectations, maintaining consistency in application, documenting violations, implementing progressive discipline, considering employee assistance programs, ensuring legal compliance and seeking guidance from HR when needed.”
Not a single AWCI member who responded was in favor of or willing to tolerate having employees in the workplace under the influence of marijuana or any mind-altering substance.
Navratil summarizes it well: “As more states and AWCI members are faced with this issue, we will collectively have better resources to share with each other. We want to keep our employees safe and have worksites that are educated to recognize impairment by any substance and make sure everyone knows the protocol to deal with those situations.”
David C Phillips, a freelance writer and photographer, is an original founding partner at Words & Images.
