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The Effects Of Marijuana Legalization On Workplace Drug Testing Policies

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

As it is legal in the most of the states, this presents some challenges for the employers. 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. In order 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. However, your employees in Idaho will be breaking laws 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 impact your business in different ways. You will have to deal with personal injury claims and insurance cost. This will also reduce productivity and lower staff morale and satisfaction. An employee with marijuana or any other drug problem can increase the risk of personal injury and property damage. This is the reason why using alcohol or any other illegal substance is strictly banned by most of the employers. Almost all businesses have zero-tolerance drug policies. However, due to different laws, it is not easy to maintain a zero-tolerance drug policy.

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. 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 the working hours, it is not easy to determine, when the employed marijuana user is really impaired. The drug testing might be discriminatory, so this might lead to wrongful actions.

However, in some other states, despite medical marijuana being legalized, the employer needs not to accommodate it. In the state of 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 was found possessing medical marijuana. The employer can also enforce a zero-tolerance drug policy. The degree of accommodation varies in other states.

This is the reason why employers running businesses in multiple states need to have well-defined drug policies. And, drug testing should be non-discriminatory.

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 taking adverse employment decisions. While preparing workplace drug policy for the company, the employer should:

  • Use the terms like ‘marijuana’, ‘cannabis’ in the policy document. The term ‘illegal drugs’ can make it ambiguous. Marijuana is legal in some states, while in some states its use is prohibited. So, avoid using the term ‘illegal drugs’.
  • Shed light on the use of marijuana on the job. The employer should indicate whether marijuana on the workplace is strictly prohibited or not.
  • Clearly define the 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 the employees, drug tests should be conducted fairly and uniformly. You, the employer, will be held liable for discrimination claims after failing to do so. Adverse employment actions may lead to discrimination claims.

In case an employee fails the marijuana drug test, the action 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 his protection from the 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 tested positive, the employer can terminate a disabled marijuana user, even when the user is prescribed medical marijuana.

The disabled employee can request an accommodation, however, 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 to create an accident free workplace and decrease hazards.

The employer should always keep the state and federal laws in mind, while preparing the drug testing policies, and learn about the recent changes in these laws. However, the federal and state laws sometimes conflict and sometimes overlap. So, the employer should also take a legal counsel, if required, and find a knowledgeable attorney, who can help in creating drug use policies.