Cutting edge Silicon Valley appears to be taking a page out of the 1960’s Haight-Ashbury playbook.

According to a recent article by Rolling Stone magazine, some Silicon Valley professionals are using tiny amounts, or “microdoses,” of LSD or other psychedelic drugs to increase productivity and boost creativity and innovative thinking.  With the rise of the use of Adderall among university students to enhance productivity, and movies like “Limitless,” where a daily pill sharpens and enhances all brain activity, it is no wonder that people pushed to their limits would turn to “microdosing” as an option to obtain an advantage in a hyper-competitive work environment.  However, while “micro” might describe the dose, it does not describe the legal risk to employees or their employers.

First and foremost, the Federal Drug-Free Workplace Act of 1988 requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency. Notably, there is no exception for “microdoses.”  A contractor or grantee who fails to carry out the requirements of the Drug-Free Workplace Act of 1988 can be penalized in one or more of the following ways:

• Payments for contract or grant activities may be suspended.
• Contract or grant may be suspended or terminated.
• Contract or grantee may be prohibited from receiving, or participating in, any future contracts or grants awarded by any Federal agency for a specified period, not to exceed five years.

For companies that are not contractors or grantees of a federal contract, there is still enormous potential liability if the company is either actively or tacitly permitting employees to use “microdoses” of illegal drugs to enhance workplace performance. OSHA’s General Duty Clause, Section 5(a)(1) of the Act, may be applicable where a particular hazard such as “microdosing” is not addressed by any express OSHA standard.  Accordingly, OSHA presents a very real risk of liability to employers that fail to take steps to maintain a drug-free workplace.

And obviously, concerns about the quality and quantity of the “microdose” must be considered. Street production of hallucinogens is wholly unregulated and lacks the rigorous standards applied to producers of pharmaceutical grade drugs like Adderall, and even medical-grade marijuana.  This obviously heightens the risk both to the worker taking the drug and to the co-workers they are working alongside in their altered state.  Any excessive use or allergic reaction could lead to loss of life or property that is likely to rest squarely on the employer’s shoulders, if they knew or should have known of the “microdosing” strategy implemented by the employee for the employer’s ultimate benefit.

Given that Silicon Valley has been a trendsetter in the past, employers everywhere should consider getting ahead of this particular trend by making sure their policies are clear in mandating a drug-free work environment, regardless of the size of the dose, or the hoped‑for productivity boost the employee may be seeking.