Since the wave of marijuana legalization and decriminalization that swept the country in recent years, employers have grown concerned about whether employees are working while high on cannabis. Now they have something else to worry about: Are your workers under the influence of small doses of hallucinogens?
The spreading practice is called microdosing and consists of a person taking small fractional doses of these psychoactive drugs. Supposedly, these doses are not enough to soar into the stratosphere on what used to be quaintly called a trip, but just enough to be high while still being capable of functioning while at work and even driving—at least that is supposed to be the case.
“Psilocybin is having a moment. Like cannabis before it, psilocybin—the psychoactive compound in so-called magic mushrooms—is slowly becoming more mainstream,” notes attorney George Mahaffey of the law firm Goodell DeVries Leech & Dann.
“Although it is listed as a Schedule 1 Drug and classified by the Drug Enforcement Administration (DEA) as having ‘no currently accepted medical use and a high potential for abuse,’ a number of cities and states are moving to legalize and regulate the compound given the drug’s therapeutic use for those suffering from, among others, mental health issues,” he adds.
In November 2020, Oregon became the first state to legalize psilocybin when voters enacted a new law that allows psychotherapists to supply psilocybin to patients suffering from Post-Traumatic Stress Disorder (PTSD), depression and a litany of other recognized mental health issues requiring treatment.
In the case of Oregon, the law establishes a tightly regulated framework that has been imposed in which psilocybin therapy occurs in a controlled setting, Mahaffey points out. Oregon’s approach is unique in that the voters didn’t simply decriminalize psilocybin, they moved to make it available to patients in a number of well-defined, controlled settings.
Other states may soon follow suit. A Florida state legislator has proposed a bill called the Florida Psilocybin Mental Health Care Act, which would allow patients diagnosed with a mental health issue access to psilocybin-assisted therapy. Connecticut legislators also have filed new bills to reform state law on psilocybin and to create a task force to study the medical benefits of magic mushrooms. A number of other states are taking a serious look at adopting similar legislation.
“While there is less of a diversified recreational market for psychedelics, state ballot measures and positive results from university studies will undoubtedly continue to broaden the circumstances under which psilocybin can be utilized for mental health therapy,” Mahaffey observes.
Make no mistake, smart money is betting on this phenomenon growing in a real way over the coming years, he reveals. Among the signs of the times are the increase in the number of law firms establishing psychedelic law practices.
“Given the connection between psychedelics, the pharmaceutical industry and potential breakthroughs in medicine for mental health, it is easy to see why law firms would want to begin exploring the space, building relationship and preparing for a potentially lucrative new market,” Mahaffey says.
Microdosing Remains Illegal
According to Mahaffey, there will be a significant need for attorneys who specialize in regulatory and transactional work, along with those experienced in pharma- or cannabis-related litigation.
“Companies in these niche industries routinely require assistance with filing applications, negotiating management agreements, settling commercial disputes, resolving employment matters and much more. Those companies will be much better positioned to navigate business and legal issues by partnering with a lawyer who has experience serving these industries.”
Another attorney, Vincent Sliwoski of the law firm of Harris Bricken, explores the topic further in an article published in the academic blog Bill of Health, which comes from Harvard Law School’s public health policy and legal research unit, the Petrie-Flom Center.
Most of the other articles in this publication’s issue dedicated to the topic also seem to be sympathetic to Sliwoski’s argument that private sector employers should reconsider the implications of a blanket prohibition on workplace use of controlled substances.
He says that people may choose to microdose for a variety of purposes. These can include medical reasons, such as the treatment of anxiety, depression or attention disorders; or they may include “performance” reasons, like attempts to increase productivity, creativity or awareness.
Our state of knowledge about the practice is so rudimentary that we don’t even have an estimate of the number of Americans who microdose, although its popularity is believed to be growing, Sliwoski says. A 2019 analysis of a Reddit discussion group devoted to microdosing recorded 27,000 subscribers. By April 2022, the number had exploded to 194,000. Sliwoski notes that conferences, educational modules and pop culture references addressing the subject of microdosing psychedelics have proliferated as well.
Microdosing is illegal under U.S. federal law. Even trace amounts of psilocybin, LSD and other psychedelics continue to be classified as Schedule I narcotics under the Controlled Substances Act. The Food and Drug Administration (FDA) has allowed some medical research regarding psychedelics to take place, including that based on a “breakthrough therapy” designation, but even these drugs may not be handled by persons without a DEA license or outside of an FDA-approved setting.
The practice of microdosing has been cause for controversy even in Oregon, where psilocybin mental therapy is allowed only in strictly controlled settings. Even those therapists who enthusiastically supported the new Oregon law look askance at the notion of lay people measuring how much of the drug they should take, when and how often.
However, the problem is that, despite the prohibited status of psychedelic drugs, people are continuing to ignore the law. “Microdosing is more widespread and popular than ever,” Sliwoski says. “This includes in business settings. It is well established that microdosing has been a trend in Silicon Valley for over a decade. This dynamic creates an awkward tension between business culture and practices, on one hand, and the law on the other.”
It may surprise employers, but Sliwoski believes that businesses should reexamine their policies on microdosing inside and outside of work hours. Terminating a star employee—or any employee—based solely on the fact that the employee ingested a subperceptual amount of a psychedelic drug may not make business sense.
Business leaders like Bill Gates and Steve Jobs have admitted to taking psychedelics. Last year, Justin Zhu, CEO of high-tech marketing firm Iterable Inc., was fired by his board after he was discovered having ingested a psychedelic drug just before attending a company meeting.
In spite of this, Sliwoski continues to believe that employers should learn from the changes in attitude regarding marijuana use. “Many employers have relaxed or modified policies in recent years to accommodate changing cultural norms. They may do well to follow suit with respect to psychedelics.”
