Pardon the pun, but there’s a cloud hanging over residential construction industry leaders these days regarding marijuana.

An estimated 22.2 million Americans—that’s 8.3% of the entire country aged 12 and over—used marijuana in the past 30 days, according to the Substance Abuse and Mental Health Services Administration’s latest benchmark survey on drug use and health. But there aren’t just more users: What they’re using is more powerful. Research published in 2014 by the University of Mississippi’s National Center for Natural Products Research found that the percentage of THC in marijuana averaged 3% in the 1980s but had increased to 12% by 2012. Today, thanks to cross-breeding and sophisticated growing techniques, “you can easily find flowers well above 30% THC potency” in some states, the blog reports.

However, a slew of data suggests this increase in use hasn’t led to more problems on the job. At the same time, a potential federal crackdown combines with fears about marijuana’s potential impact—particularly in its more powerful state—to keep employers wary.

“Employers in every industry are confused and really don’t know what to do,” says Kathryn Russo, an attorney on Long Island for the Jackson Lewis law firm, which specializes in drug and alcohol testing. “The marijuana situation is worsening. It’s growing more confused by the day.”

Amid that uncertainty, one thing remains unchanged: Construction can be a dangerous business. How much more dangerous is it when you have pot-smoking crew members who could get, as one employer put it, “one bubble off of level?” There’s no clear answer, but our research found sharp contrasts among business owners in terms of how to address marijuana use, especially as its legalization widens.

Many employers continue to maintain a no-drugs policy, saying it’s the best way to ensure all remain safe. “Our policy is no illegal substances and no grace, you are fired,” declares Terry Albaugh of The Craftsmen Group, Wilmette, Ill. “It is not something I have had a problem with yet.”

Other company owners are like Tod Sakai, president of Sockeye Construction Corp., Kent, Wash. He says it’s none of his business whether his workers smoke marijuana at 7 p.m. on a work night. “But my expectation is that by 5 a.m. the next day, they need to be sober and ready to go,” he says. “[If I see] any risks to safety, I’ll immediately pull them. … I’m going to treat it just like alcohol: Effects should never be lingering at the site.”

An increase in drug usage affects one of builders’ biggest pain points: the labor shortage. There was a time when there were enough people looking for work that business owners didn’t sweat finding job candidates who were clean and sober. But when the unemployment rate is as low as Colorado’s—just 2.3% in April vs. the national rate of 4.4%—and our nation has this century’s lowest ratio of job-seeking people to job openings, there’s wide belief that something’s got to give.

“Some in my peer group that do a lot of specialty work say they couldn’t hire anyone if they did drug testing,” says Gary Demos, president of Dave Fox Design-Build Remodelers, in Columbus, Ohio. “We expect a lot from our people in many ways, and it can become very difficult to add production people when we need them. So far we’re holding the line on drug testing, and I hope that we won’t be forced to re-evaluate.” The firm has drug tested for the past 15 years, both prior to employment and then randomly. It has fired people for failing the test.

Meanwhile, some employers are resigned to the idea that they have to take in pot-smokers despite the potential consequences, simply because there’s nobody else to hire. “Ninety-five percent of field workers test positive every time we test,” one remodeler says. “Before we were zero tolerance, but we soon realized we wouldn’t have any workers, including some management.” And he’s based in Florida, a state that has yet to decriminalize pot.

Does Drug Testing Work?
Bethesda, Md.–based Case Design/Build decided more than 10 years ago to introduce drug testing prior to employment, in addition to conducting tests at random and in cases where it had reasonable suspicion. “We had been having too many accidents over the past years and felt that this was a way to weed out some bad eggs,” says Jan Shaut, a senior vice president. “There was a lot of fear among our people, but our leadership group felt strongly that ‘clean living’ was more a part of our culture and that with the number of accidents we were having, we couldn’t afford to let those who were not drug-free work on jobsites.”

Since then, the number of accidents at Case has decreased, something Shaut also credits to increased safety efforts.

The problem with tests, experts say, is they can detect THC in a body long after the drug’s effects have worn off. The high produced from smoking marijuana starts with the first tokes, peaks in about an hour, and typically lasts three to four hours, although it still can impair as many as six hours later, according to a joint guidance statement issued in 2015 by the American Association of Occupational Health Nurses (AAOHN) and the American College of Occupational and Environmental Medicine (ACOEM).

As a result, tests that can detect marijuana’s presence 36 to 48 hours after its use can’t prove that a worker who smoked pot on Saturday night was impaired on Monday morning. There’s no good breathalyzer or sobriety test for marijuana. “[T]here is little information on how accurately a positive pre-employment test may predict use after employment, and drug testing will not necessarily capture patterns of drug-using behaviors that may influence occupational injuries,” according to a 2009 survey by the RAND Center for Health and Safety in the Workplace.

It’s for similar reasons that when Wesley Crocket of Chicago-based Mahogany Builders was asked whether his firm tests for marijuana, he replied, “No, just no.” Aside from the fact that the tests for marijuana can’t prove a person was high on the job, Crocket says, “I’d rather have a guy that smokes some pot after he gets off of work to chill out than a guy that hits the bar hard every night after work to let off some steam.”

What people do just before starting work, however, is another matter entirely. Tim Shigley, a remodeler based in Wichita, Kan., recalls one of his jobsites several years ago when he saw some electrical subcontractors smoking marijuana in their car just prior to the day’s start. He called the subcontractors’ boss and made certain they didn’t do any work on his site that day. Meanwhile, a roofing company owner says he knew some roofers in his area who smoked pot in their work van so often that seeds that had fallen out of their rolled joints had begun to sprout on the van’s floor. And an Oregon remodeler remembers well when a member of his team got high with a co-worker across the street from the shop, walked onto the job, and soon after cut off three fingers with a power saw.

“I would never tolerate an employee drinking a beer at lunchtime, and the same is true with marijuana,” said Zach Snider, principal at ALLOY, a Charlottesville, Va.–based architecture, construction, and graphic design firm. “Recreational drug use is for recreational time, not vocational time.”

But what starts as recreational use can quickly change. Organizations like the National Institute on Drug Abuse say that the higher types of THC levels being seen today “raise concerns that the consequences of marijuana use could be worse than in the past.” Roughly 9% of people who use marijuana today become dependent on it, the institute says.

“If you talk to people who are in rehab, they’ll say ‘It all started with X,’ and it progresses,” says Jo McGuire, a Colorado resident and co-chair of the Marijuana Education Committee of the Drug and Alcohol Testing Industry Association. “The typical human anatomy is that you start with a tolerance and some go on to harder things because a drug doesn’t do it for them anymore. We did not see that with marijuana in the '60s and '70s when the THC was below 5%. But when it reached potencies of 5% and over, that’s when we saw people reporting to treatment centers and saying they’re dependent.”

McGuire says her son, 24, is a “committed user” of marijuana who has been in and out of treatment. “I definitely believe in gateway drugs,” she says, “and I believe marijuana is more of a gateway than we’re used to.”

What's legal where?
Two-thirds of all states and Washington, D.C., have permitted medical use of marijuana, decriminalized penalties for possession of the drug, or permitted recreational marijuana use—and some have done all three. Take a look at BUILDER's interactive map below to see which states have laws regarding the decriminalization, legalization, and medical use of marijuana.


Source data provided by NORML

The legalization of the possession and personal use of pot has created even more of a gray area for builders in Alaska, Washington, Oregon, Nevada, California, Colorado, Maine, and Massachusetts, in addition to the District of Columbia.

Some other states, such as Nebraska and Mississippi, haven’t legalized marijuana, but they have cut the criminal penalties for possession to misdemeanor levels. And marijuana can be used legally for medical purposes in 29 states and D.C.—roughly 2.3 million Americans have medical marijuana permits, according to one ongoing tabulation by a pro-pot group.

Those numbers look likely to grow dramatically. At press time, numerous states had initiatives in the works or coming up for debate that would permit medical marijuana usage or legalization. Only a few places, such as Vermont and Arizona, have seen initiatives rejected, although a revised bill may see movement in Vermont when the state Legislature reconvenes.

About the only place where attitudes about marijuana are getting tougher is within the federal government. Attorney General Jeff Sessions calls pot a “very real danger” and declares “good people don’t smoke marijuana.” You can’t carry weed across state lines, even if both allow possession. Pot remains classified as a Schedule 1 drug, meaning it has no currently accepted medical use and carries a high potential for abuse. And the banking system is barred from serving the cannabis industry, which means that builders and building material suppliers in areas with robust marijuana businesses often find themselves forced to accept huge wads of cash from customers.

The clash between federal and state law can make life tricky for employers. For instance, can a person claim a violation of the Americans with Disabilities Act if he has taken part in drug rehabilitation program and then is fired when he fails a test for marijuana? No, a court in Nevada ruled, because while drug addiction is a recognized disability under the ADA, smoking marijuana was prohibited by his employer.

But in Rhode Island, a Superior Court judge ruled in May that a fabrics company discriminated against a woman when it rescinded the offer of a paid internship because she participated in the state’s medical marijuana program and said she would be unlikely to pass the mandatory pre-employment drug test. Many states’ statutes permitting marijuana use for medical or recreational reasons make clear that employers still have the right to maintain a drug-free workplace. In Rhode Island’s case, the judge found that the woman’s civil rights were violated because the state’s medical marijuana law protects cardholders from discrimination in employment.

For years, researchers have reached contradictory conclusions on how strong the link is between marijuana use and on-the-job injuries, according to the 2009 RAND survey. RAND reviews of academic studies since the 1990s concluded that there is an association between substance abuse and on-the-job injuries, but it’s “relatively small,” the report said.

What Can Employers Do?
At the very least, ACOEM and AAOHN say, “The best practice for employers is to begin with a clear written policy regarding chemical use and impairment.” If your company does drug test, whether it’s pre-employment, at random, or both, be up front with employees about the process and the consequences. While companies on federal contract are required to run a drug-free workplace, in general an increasing number of companies have stopped bothering with tests. The Mountain States Employer Council found in a 2016 survey that 64% of 609 Colorado employers did pre-employment marijuana testing, down from 77% in 2014.

However, McGuire of the Marijuana Education Committee of the Drug and Alcohol Testing Industry Association believes it makes economic sense for employers to keep testing.

“According to the Labor Department, 40% of workplace fatalities are drug-related,” McGuire says. “If there’s a serious accident, injury, a fatality, that’s going to cause a payout. Are you willing to absorb that 100% rather than allowing the possibility your employee might be at fault?”

Other advice on the issue is to be vigilant and show you care. Visit the jobsite first thing each day and scan the workforce for signs of impairment. Sakai in Washington state says he doesn’t believe anyone employed at his company has any issues with drugs. “Part of the reason why I know with my guys is that—and this isn’t a cliche—they are my family,” he says. “And, having that relationship, if they’re going to have surgery on their toe, I’ll say ‘Don’t get that percocet crap. Take Tylenol for a few days.’ We have that relationship, and the guys have that themselves; they count on each other.”

It’s also important to separate politics from safety. McGuire recognizes that employers are facing intense pressure from workers to not interfere with those workers’ personal time, but she also is mindful that most laws also declare that what you do privately can’t get in the way of your work.

“We’re afraid of marijuana because it has become a political issue,” she says. “Employers have a real opportunity to contribute something positive to the culture and say, ‘You know what, there are healthy boundaries, and you have to be safe and use common sense.’”

For more, take a look at BUILDER's full coverage on drug use in the construction industry: