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RIMS Report: Risk Management Implications of Conflicting Federal and State Cannabis Laws

The RIMS External Affairs Committee has issued a new Legislative Review discussing the challenges risk professionals may face regarding the cannabis laws in the United States.

Available exclusively to members, The Risk Management Implications of Conflicting Federal and State Cannabis Laws is designed as a resource for risk professionals representing cannabis businesses, as well as landowners and landlords who often face a range of issues as a result of the disconnect between state and federal cannabis laws.

The sale, possession and use of marijuana has been fully and partially decriminalized in many states, but is still federally recognized as a “Schedule I Narcotic” under the Controlled Substances Act. This has led to conflicting interpretations of the law and unwittingly put many companies at risk of breaking the law.

“The members comprising our external affairs committee have been monitoring the developments related to cannabis for years,” said Whitney Craig, RIMS Government Affairs Director. “There are few absolutes when it comes to cannabis in the United States, but the review provides a concise guide to help members navigate through the challenges posed in this evolving industry.”

The review discusses:

  • how and when to navigate between state and federal laws
  • the risks of a marijuana business opening a bank account
  • what types of businesses are subject to federal drug raids
  • how these laws and risks impact residential and commercial owners
  • insurance resources
  • and more.

“Until the Controlled Substances Act is amended to remove marijuana as a Schedule I Narcotic, there is always some risk that shifting political winds or other factors in the area where the business is located may result in prosecution, even where marijuana has been legalized or decriminalized,” the report states. “Careful due diligence and legal advice from counsel familiar with this area of law is always a wise choice.”

The report touches on a number of new cannabis industries, such as delta 8 THC which has become popular in Texas due to the recent DSHS ban. There are a number of merchant services that will process payments for delta 8 THC products, and there are also a number of banks who will accept these clients, according to delta 8 vape manufacturer Area 52.

The report is currently available exclusively to RIMS members. To download the report, visit RIMS Risk Knowledge library at www.RIMS.org/RiskKnowledge. For more information about the Society and to learn about other RIMS publications, educational opportunities, conferences and resources, visit www.RIMS.org.

Risk Management magazine has covered the risks that growing marijuana can pose to commercial or residential property.

Quest Data Shows Rise in Positive Test Rates for Workplace Illicit Drugs

Organizations in the United States that tested employees for drugs saw a 9.3% jump in the number of positive drug tests for illicit drugs in the general workforce, to 4.7% in 2014 from 4.3% in 2013, according to data from Quest Diagnostics. These results may mark a rising trend, as 2013 was the first year since 2003 in which the overall positivity rate for about 1.1 million tests increased in the general U.S. workforce. The analysis shows a potential reversal of a decades-long decline in the abuse of illicit drugs in the U.S. workforce, Quest said.

“American workers are increasingly testing positive for workforce drug use across almost all workforce categories and drug test specimen types. In the past, we have noted increases in prescription drug positivity rates, but now it seems illicit drug use may be on the rise, according to our data,” Dr. Barry Sample, director of science and technology at Quest Diagnostics Employer Solutions, said in a statement. “These findings are especially concerning because they suggest that the recent focus on illicit marijuana use may be too narrow, and that other dangerous drugs are potentially making a comeback.”

While marijuana continues to be the most commonly detected illicit drug, others include cocaine, methamphetamine and heroin, Quest reported, noting that across all specimen types, the positivity rate for amphetamines is now at the highest levels on record and the positivity rate for methamphetamine is at its highest level since 2007. Amphetamines make up the category that includes both prescription amphetamine drugs like Adderall as well as methamphetamine. The positivity rate for 6-acetylmorphine, or 6-AM, a specific marker for heroin, doubled in the general U.S. workforce between 2011 and 2014, According to Quest.

In urine drug test data from two states with recreational marijuana-use laws, Colorado and Washington, the marijuana positivity rate increased 14% and 16%, respectively, in the general U.S. workforce between 2013 and 2014. This roughly paralleled the national average of 14.3%. By comparison, between 2012 and 2013, the marijuana positivity rate increased 20% and 23% in Colorado and Washington, respectively, compared to the national average of 5%, Quest said.

“We were surprised that marijuana positivity increased at about the same rate in Colorado and Washington as the rest of the United States in 2014, particularly given the sharp increases in the marijuana positivity rate in both of these states in the prior year,” Dr. Sample said. “It’s unclear if this data suggest a leveling off in marijuana use in these particular states or if some other factor is at work. We also find it notable that the national marijuana positivity rate increased as much as it did in 2014, and question if this means that people are more accepting and therefore more likely to use marijuana recreationally or for therapeutic purposes than in the past even in states where marijuana’s use is not clearly sanctioned by state laws. This will be an important area of continued analysis given the national debate about the legality and health impacts of recreational and medicinal marijuana use.”

Drug-Free Workplace in the Age of Marijuana

Advocates for the legalization of medical marijuana have had a busy year. Three states–Maryland, Minnesota and New York–passed legislation this year, while Florida, Ohio and Pennsylvania have pending legislation or ballot proposals. Additionally, in two states, Colorado and Washington, voters have approved recreational marijuana in addition to medical marijuana, with the issue pending in Oregon and Alaska.

These measures have prompted many employers to ask if there is growing societal acceptance of marijuana and other drugs and should they expect a possible increase in employees using drugs on the job.

New data suggests the answer to both of those questions may be yes. An analysis from Quest Diagnostics, which provides workplace drug testing to private and public employers, found that in 2013, the percentage of employees that tested positive for drugs increased for the first time in 10 years, fueled by a rise in marijuana and amphetamines. The analysis involved 8.5 million urine, oral fluid and hair workplace drug tests in the United States.

The cost of substance abuse, including alcohol, on businesses, in terms of employee absenteeism, occupational injury, and impaired reasoning and reaction time, is significant–more than $276 billion annually by some estimates. A survey sponsored by the National Institute on Drug Abuse found that drug-using employees are 2.5 times more likely to have absences of eight days or more, 2.2 times more likely to request early dismissal or time off, 3 times more likely to be late for work, and 5 times more likely to file a workers compensation claim.

As a result, most businesses have comprehensive drug-free workplace programs in place, and 57% of American businesses required all job candidates to pass a drug test in 2011, according to the Society for Human Resource Management. Due in part to these workplace efforts, substance abuse by workers subject to testing declined incrementally over the past decade, giving hope that the epidemic of drug use and misuse was abating.

But the Quest Diagnostics report suggests those gains may be reversing. The positivity rate for 7.6 million urine drug tests in the U.S. workforce increased 5.7% in 2013 over 2012 rates, the first time the positivity rate for combined national workplace urine drug tests has increased since 2003.

As human resources executives work to implement and maintain drug-free workplaces, additional findings in the analysis offer valuable insights into current trends in workforce drug use:

  • Marijuana continues to be the most commonly detected illicit drug, according to the Quest Diagnostics analysis of urine drug tests. Marijuana positivity in the combined U.S. workforce increased 6.2%, to 1.7% in 2013 compared to 1.6% in 2012. These increased positivity rates are consistent with findings from the 2012 National Survey on Drug Use and Health (NSDUH), which showed an increase in self-reported past-month marijuana use between 2007 and 2012–both among those respondents subject to employer drug testing and those not subject to such testing.
  • Amphetamines positivity continues to increase, continuing a multi-year trend. Combined U.S. workforce data in urine showed a 10% year-over-year increase in amphetamines positivity in 2013 compared to 2012. Of note in the U.S. general workforce, methamphetamine positivity in urine drug tests increased 27%; oral fluid methamphetamine positivity increased by 50%, and the positivity rate in hair testing jumped by 55%, suggesting that the higher incidence of methamphetamine identification in drug seizures by law enforcement is starting to be reflected in workplace testing. Amphetamines positivity rates are now at their highest levels on record and methamphetamine positivity rates are at their highest levels since 2007, across all specimen types.
  • Oxycodones positivity declined for the second consecutive year. Although the rate of opioid prescribing–the amount of opioids distributed and the average prescription size–all increased markedly in the United States over the past decade, the Quest Diagnostics Drug Testing Index report showed oxycodones positivity declined 8.3% between 2013 and 2012 and 12.7% between 2012 and 2011 in the combined U.S. workforce. Four states experienced double-digit declines in oxycodones positivity rates in both 2013 and 2012: Florida, Massachusetts, New Jersey and Ohio. Hydrocodone positivity remained at 1.3% between 2012 and 2013.
  • Despite double-digit increases in marijuana positivity in the two states with “recreational” use laws–Colorado and Washington–analysts at Quest Diagnostics cautioned that it is too early to tell whether the new statutes are correlated with increased positivity. Marijuana positivity rates in Colorado and Washington increased 20 and 23%, respectively, in the general workforce between 2012 and 2013, compared to the 5% average increase among the U.S. general workforce in all 50 states. However, both Colorado and Washington experienced dramatic increases and declines in marijuana positivity rates in the years prior to legalization, suggesting that multiple dynamics are affecting testing results in both states.
  • While the Quest Diagnostics Drug Testing Index report indicates that workforce drug use increased last year, HR managers have a variety of tools at their disposal to ensure safe and healthy workplaces, including vigilant oversight, strong zero-tolerance employment policies, employee drug screening, stigma-free mental health counseling and employee assistance programs. Preventing substance abuse in the workplace keeps employees safer and healthier, and leads to higher productivity, lower costs and a healthier bottom line.

Nearly 10% of Americans Have Gone to Work High

Marijuana in the workplace

According to a new study conducted by Mashable and Survey Monkey, 9.74% of American workers have been under the influence of marijuana when they went to work. Of that group, about 81% obtained the pot illegally, meaning only 19%  purchased it recreationally in Washington or Colorado, or bought it for medicinal purposes where medical marijuana has been legalized in one of 23 states or Washington, D.C.

Nearly three times as many workers have been on prescription drugs on the job, but only 7.28% reported that they had taken the drugs recreationally, and 95.36% had obtained the medication legally, with a doctor’s prescription.

Check out the infographic below for more of the study’s findings on drug use in the workplace, and who some of the riskiest employees may be:

Drugs at work infographic