Legislators Discuss Cannabis In The Workplace
Legislators heard a presentation on cannabis and the workplace during Tuesdays’ interim meetings in Morgantown.
West Virginia law protects employees from being fired for using medical cannabis products, but employers can still prohibit employees from being under the influence at work.
The West Virginia Legislature’s Joint Standing Committee on the Judiciary heard from two experts on the challenges of testing for cannabis impairment.
Employment lawyer Nancy Delogu explained that while blood, urine, and saliva analysis can provide evidence of tetrahydrocannabinol (THC), the psychoactive ingredient in cannabis, in a person’s system, there is no true test for impairment as THC affects each individual differently.
“There's not a test for an impairment, there has never been a test for impairment,” she said. “We don't have a test for alcohol impairment, we have a breathalyzer. It measures the amount of alcohol in one’s blood.”
Delogu pointed out that breathalyzers have 75 years of federal highway safety data to back up correlations between blood alcohol levels and the likelihood of driving impairment.
THC also lingers in the body longer than most other substances. A traditional urine analysis could produce a positive result up to a month after cannabis use, making it functionally useless as a test for on the job impairment.
Aaron Lopez of the lobbying firm Political Capital explained that West Virginia has defined impairment as the presence of more than 3 nanograms of cannabis metabolites, byproducts of the body’s metabolism, in a blood test. He said that is a stronger definition than surrounding states, who fall closer to the national average of five or 10 nanograms.
“The blood test is much more accurate but trying to figure out where the blood level correlates with impairment is still something that is being tested around the country,” Lopez said.
While accurate, blood tests take time and require the presence of a trained phlebotomist. Lopez and Delogu both pointed towards saliva or oral fluid testing as the likely future for employers concerned about cannabis-impared employees.
The discussion comes just one month after a miner’s suspension for the use of a CBD product was upheld by the state supreme court.
“Even in the footnotes of Justice Armstead, he noted that we have to deal with this,” Sen. Mike Caputo, D-Marion, said. “We have to figure out a way to deal with this in the workplace.”