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The Effects Of Marijuana Legalization On Workplace Drug Testing Policies

According to federal laws, marijuana is not a legal drug, but it is legal in some states for both medical and recreational use. In some states, you can buy it without any limitations, while others have legalized marijuana with limited THC content for medical use only. In several states, however, marijuana is still illegal for all purposes.

As it is legal in most states, employers are faced with some challenges. If you are running your business in different states, preparing a drug testing policy for employees can be an arduous job. Marijuana laws vary from state to state. To maintain workplace safety and avoid legal consequences, you must comply with divergent laws. At the same time, you also have to protect the legal rights of your employees. For example, if you have an office in California, your employees are allowed to use both recreational and medical cannabis. They can easily buy marijuana in Orange County, San Francisco, or anywhere else, but employees in Idaho will be breaking the law by smoking weed for any purpose.

So, how to develop a good workplace drug testing policy?

  1. The importance of maintaining a safe work environment
  2. The difference between marijuana state laws
  3. Developing a workplace drug policy
  4. Administering a drug testing program
  5. Final thoughts

workplace drug testing policy

The importance of maintaining a safe work environment

Workplace accidents and injuries affect your business in different ways. You will have to deal with personal injury claims and insurance costs, which will also reduce productivity and lower staff morale and satisfaction. An employee with a marijuana or any other drug problem can increase the risk of personal injury and property damage, which is why using alcohol or any other illegal substance is strictly banned by most employers. Almost all businesses have zero-tolerance drug policies, but due to different laws, it is not easy to maintain this standard.

The difference between marijuana state laws

Noffsinger v. SSC Niantic Operating Co., LLC is a perfect example. If your employee is a medical marijuana user, you have to accommodate that person. Connecticut is one of the states in which an employer cannot punish or discriminate a medical marijuana cardholder employee even if the results of the marijuana drug test are positive.

Although an employer is not prohibited from disciplining an employee under the influence of marijuana during working hours, it is not easy to determine when the employed marijuana user is actually impaired. The drug testing might be discriminatory, which might lead to wrongful actions.

In some other states, despite medical marijuana being legalized, employers need not be accommodating. In California, for example, an employer has the right to dismiss any employee who failed a drug test for THC. According to Ohio laws, an employer can refuse to hire, discipline, and even discharge the employee if he or she is found with medical marijuana. The employer can also enforce a zero-tolerance drug policy. The degree of accommodation varies in other states.

This is why employers running businesses in different states need to have well-defined drug policies, and drug testing should be nondiscriminatory.

Developing a workplace drug policy

An employer can create a safe workplace and reduce the risk of any kind of personal injury and property damage by developing a well-defined drug policy. This drug policy aims to reduce the likelihood of marijuana intoxication-related disciplinary actions and prevent the employer from making adverse employment decisions. When preparing a workplace drug policy for the company, the employer should:

  • Use such terms as “marijuana” and “cannabis” in the policy document. The term “illegal drugs” can be ambiguous. Marijuana is legal in some states, while its use is prohibited in others, so avoid using the term “illegal drugs.”
  • Shed light on the use of marijuana on the job. The employer should indicate whether or not marijuana in the workplace is strictly prohibited.
  • Clearly define drug testing policies and procedures and also the consequences of failing a drug test.
  • Make employees aware of marijuana-related clinical issues. Educate employees on the effects of marijuana on the body.

Administering a drug testing program

After sharing the policy document with employees, drug tests should be conducted fairly and uniformly. You, the employer, will be held liable for discrimination claims if you fail to do so. Adverse employment actions may lead to discrimination claims.

In case an employee fails a marijuana drug test, the action an employer can take depends on state and federal laws. Even when the employee is using marijuana to treat some disability, the Americans with Disabilities Act (ADA) does not provide protection from adverse employment actions. Any substance (including marijuana) banned under the Controlled Substances Act is considered illegal by the Americans with Disabilities Act and may show up in a drug test. So, if an employee tests positive, the employer can terminate a disabled marijuana user even when the user has been prescribed medical marijuana.

The disabled employee can request an accommodation, but in some states, an employer can refuse to accommodate and still terminate the employee after failing a marijuana drug test.

Final thoughts

It is important to create and implement effective drug policies for an accident-free workplace.

The employer should always keep state and federal laws in mind when preparing drug testing policies and learn about any recent changes in these laws. Federal and state laws do, however, sometimes conflict and overlap. So, if necessary, the employer should also consult with a knowledgeable attorney to help create drug use policies.