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Employers and Marijuana in a Drug Testing Program

20 Jul 2015

... States with Medical Marijuana currently as of July 2015:

Alaska,  Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and Washington, DC.


23 states have legalized medicinal marijuana use, and four states and Washington DC have legalized recreational use, as an employer “Have you addressed your Drug Testing Program and Drug Free Workplace Program”.  Lawsuits involving marijuana laws and the workplace are multiplying, but several have already been ruled in favor of employers.

Critical to avoiding exposure to liability is to update your workplace drug testing program or drug free workplace policy and address the issue of medical and recreational marijuana.  If you don’t have a policy on medical and recreational marijuana you will more than likely lose a lawsuit related to this issue.

Drug use including marijuana is a significant threat to workplace health, safety and productivity.  Workplace drug testing programs identify those who need assistance in addressing their drug use problems, reinforce prevention messages, and deter workers from using drugs.

Short-term effects of marijuana use include impaired short-term memory, impaired motor coordination, altered judgment and, in high doses, paranoia and psychosis.  Are these the symptoms you want your customers and drug free employees to be exposed to?  Drug-free workplace programs do not interfere with legitimate medical care, but they do protect workplaces against the negative effects of individuals at work under the influence of drugs, regardless of how legitimate that drug use might be. When an employee is observed to be under the influence of a prescribed medicine, the employee may be placed on administrative leave, while the legitimacy of the medical regimen is determined and any impairing effects of the medical treatment are eliminated.

Businesses with federal contracts or that operate under the Department of Transportation must comply with drug testing regulations under federal law that prohibit employees from using marijuana.  Thus, having a drug-free work place policy enables a federal contractor to achieve two goals – (1) promote safety and productivity; and (2) maintain its federal contractor status.  Employers should review all contractual obligations as they relate to drug testing and drug free workplace programs.

Some employers may choose whether to make an exception for medical marijuana use.  But, if that is an exception that an employer decides to make, it must be an exception that is applied after a thoughtful consideration of all the safety and business risks involved and done in a manner in which the employer does not unnecessarily expose itself to potential claims for discrimination.  The policy should be consistent and State laws should be considered.

Joe Reilly is an expert in workplace drug testing programs and drug free workplace policies.  For a limited time only (through August 15, 2015), Joe will review your drug free workplace policy and provide a 30 minute phone consultation to advise you on updates and changes you might consider for your drug free workplace program.  To take advantage of this special offer, call 866 843 4545 and ask for Joe and reference this article and your drug free workplace policy as it relates to medical and recreational marijuana.

The foregoing is provided for informational purposes only and should not be construed as legal advice.

Employers and Marijuana in a Drug Testing Program