All it takes is a cursory glance at an active construction site to see how inherently dangerous this line of work can be. The federal government agrees, as construction tops the Bureau of Labor Statistics’ list of most dangerous jobs. It’s a fast-paced industry that can entail everything from operating heavy equipment and hazardous chemicals to working at extreme heights. One wrong move can literally be a matter of life and death. And that’s assuming you’re completely sober.
Unfortunately, though, drug abuse is a serious concern throughout the industry. A study from the Orlando Recovery Center that examined data between 2008 to 2012 found that the construction industry had the second highest rate of alcohol and drug use. For contractors, the solution seems obvious – implement a rigorous drug-testing program.
In Pennsylvania, that’s easier said than done, particularly when it comes to marijuana. While marijuana is illegal under federal law, the Pennsylvania Medical Marijuana Act allows the prescribed medical use of marijuana for certain chronic conditions. It also stipulates employers cannot make adverse employment decisions solely based on an employee’s status as being certified to use medical marijuana. However, that doesn’t mean your company cannot have a written policy that includes marijuana testing, says Maria Trapenasso, Head of Human Capital Solutions practice, NFP – a benefits consulting firm. Trapenasso says the key is for contractors to ask themselves if their policy is just a list of rules or a comprehensive strategy document that includes action plans.
“Employers may have a drug policy in place, but what are they doing for the employee if they do test positive?” Trapenasso asks. “Do they have a program that is going to help them get into rehab? Do they have any wellness benefits that can actually help the employee turn things around?”
Law firm Bradley Arant Boult Cummings LLP noted in a 2021 blog post that under the Americans with Disabilities Act, contractors can fire an employee who tests positive for marijuana, “even if that employee is disabled, prescribed medical marijuana, and only uses marijuana on his or her own time.” However, the ADA also stipulates that if an employee discloses a disability and seeks accommodation, “a contractor is required to consider reasonable accommodations, which could include transfer to a non-safety -job (where the marijuana use may not pose a safety concern) or for temporary leave during treatment.”
The firm says that a construction company’s drug policy should include a clear definition of marijuana, cannabis, or any synonymous name. It notes that only prohibiting the use of “illegal drugs” can result in legal ambiguity in the event of a claim. A policy also needs to explicitly state that the use of marijuana or any other controlled substance is prohibited. Perhaps most importantly, the policy also needs to convey the clinical ramifications of drug use.
Companies also need to consider the not-so-small matter of how they will conduct their drug tests. Urine drug testing is the most common method of workplace drug testing because it’s relatively low-cost, and it’s presently the lone method that is approved for the Federal Department of Transportation or other federally mandated drug testing. However, urinalysis can take up to three days, which is partially why Trapenasso believes faster oral drug testing will be the “wave of the future.” According to National Drug Screening Inc, Pennsylvania has no restrictions regarding the collection of oral fluids or hair as a means for testing. There also aren’t restrictions in the state regarding random drug testing.
But what if you work in more than one state? Trapenasso says contractors can find themselves in trouble if their policies and procedures are not tailored to different jurisdictions. For example, Ohio has some restrictions in place for oral fluid testing and hair follicle testing. Wading through different state regulations is one area where outsourcing the development of a safety policy to a third party can be helpful, Trapenasso says.
However, she notes that any policy is only as good as a company’s efforts to disseminate this information from the top down.
“One of the largest factors in moving that needle is manager training,” she says. “If your managers are not being held accountable for making sure that they are reporting what’s happening, everyone’s at risk.”
