Quite the questions these days – what should employers do about marijuana testing?
Before answering that question, several other questions have to be discussed. What State or States do you have employees in and do those States have medical marijuana laws and/or recreational marijuana laws? Do you have DOT-regulated employees? Do you have employees in safety-sensitive positions? Do you have a drug-free workplace policy?
As of August 2017; 29 States and Washington, DC have legalized the use of the marijuana plant for medical purposes. Several additional States limit use to the nonpsychoactive marijuana extract called cannabidiol (CBD). Also remember that it is illegal under Federal law to prescribe marijuana; doctors “recommend” marijuana (considered protected free speech between doctor and patient) in those States that have medical marijuana laws.
So regarding medical marijuana, ask what is your company policy – a decision has to be made. Easy decision if you are in those States with no medical marijuana laws and for DOT regulated employees – marijuana is prohibited. In medical marijuana States you will have to decide if you will prohibit use of marijuana or allow it. Perhaps you will prohibit use of marijuana for safety sensitive employees and allow it for non-safety sensitive employees. Maybe your decision for non-DOT drug testing is to drop marijuana from you testing panel; but first check that perhaps this is in violation of a State law in your State. For DOT regulated employees, all use of marijuana is prohibited regardless of State law.
Court cases in many States have upheld employers’ rights to maintain drug free workplace policies that prohibit the use of marijuana as a condition of employment. But put this policy in writing or forget about winning any challenge. Very recently court cases in Connecticut, Massachusetts and Rhode Island have sent messages to employers to stop and consider each medical marijuana situation as perhaps the applicant or employee has a disability and the use of marijuana would be a protected accommodation. Don’t just refuse to hire or terminate employment without looking at the entire situation and all the facts.
Regarding recreational marijuana this would only be a concern as of August 2017 in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington and Washington DC. Employers in those States are holding firm on their drug free workplace policies in order to keep out workers who are smoking pot. Again your company must make a policy decision and put the decision in writing. Even in all the other States, your drug free workplace policy should state that “the use of marijuana including recreational marijuana is prohibited and testing positive for marijuana is a violation of this company’s policy”. This covers a situation when an employee comes back from vacation and says “hey I was Denver, Colorado and I smoked pot while on vacation and it was illegal”.
So the questions we are getting from employers – what should we do about marijuana testing need to go back to the employer and top management to for decisions on what the company policy will be. Once management decides on the policy then it is important to work with a professional who can craft that management decision into a well written drug free workplace policy. Drug free workplace experts at National Drug Screening are available to help with writing effective drug free workplace written policies.
More on the marijuana issue and the question of should I drop marijuana from my company drug testing program – Click Here.