A Guide to Drug Testing and Drug-Free Workplaces in the Era of “Legal” Marijuana

With medical and recreational marijuana use becoming legal in more states nationwide, it can be tricky to figure out what kind of drug-testing policy your business should have. There are many variables involved and in this article, we’ll give you a general overview of the necessary considerations so you can determine what policy is right for your organization.

Prohibiting Drug Use

If an employer opts for a no tolerance or other very strict policy, they should have a written and consistently enforced workplace policy tailored to meet their specific needs. Consider the following questions:

– Who will be tested? (e.g. staff, job applicants, employees in safety-sensitive positions)
– When will tests be conducted? (e.g. pre-employment, upon reasonable suspicion or for-cause, post-accident, randomly, periodically, post-rehabilitation)
– Which controlled substances or drugs will be tested for?
– What will the outcome be for positive drug tests? (e.g. discipline, termination)

You should be familiar with any local, state, and federal laws that may affect when, where and how testing is performed. Given all the legal ins and outs, it is wise to seek legal counsel before starting a testing program.

Every employee needs to be aware that such testing is a possibility. A written policy on this, distributed to and signed by all employees is essential.

If you observe suspicious behavior, get another manager or HR representative to corroborate the observations. If you determine a drug test is warranted, send the employee to a nearby clinic that’s certified to perform drug testing. Do not administer the drug test yourself. Do not have the employee drive themselves either, instead call a cab.

Supervisor Responsibilities

Supervisors should monitor employees’ performance, stay alert to and document performance problems, and enforce the policy. They should not be expected to diagnose drug-related problems or provide counseling to employees with these issues. They must also be trained to determine whether there are drug-related issues or not.

Complications Due to State Marijuana Laws

Despite still being illegal at the federal level, more than half the states have decriminalized marijuana for medicinal use, and some have also legalized recreational use. Understandably, these inconsistencies raise many questions for employers.

You are not required to make accommodations for use under the Americans with Disabilities Act. Be advised that some states have anti-discrimination language written into their marijuana statues. Because of this, there remains uncertainty on how employers are expected to accommodate the presence of marijuana in an employee’s system.

There is no one-size fits all solution, as different positions and responsibilities can change the policy dramatically.

Allowing Off-Duty Use

Many employers have chosen to have a more lenient policy on marijuna usage, as they don’t want to turn down or terminate quality workers for drug use that has no impact on job performance or safety.

The only difficulty in this is that it can be hard to determine when the drug has been used. THC (the active ingredient in marijuana) can be detected for several days or even weeks after use. Therefore testing won’t reveal whether usage occurred on- or off-duty. A best practice is to focus on performance of job duties. Detailed documentation of poor job performance is much stronger support for discipline or termination than an inconclusive drug test.

It goes without saying that a lenient policy would not be appropriate for safety-sensitive roles or employees that drive frequently for work. Furthermore, employers with driving positions subject to Department of Transportation regulations must comply with very strict drug testing requirements.

By |2017-06-27T19:54:53+00:00June 28th, 2017|Compliance, Hot topics for 2017|0 Comments

About the Author:

Tom Engel
Tom Engel has over 20 years of customer-facing, professional experience, in the areas of IT, human resources and marketing – with companies as diverse as Sage, Intel and Providence Health & Services. Tom works with a wide range of industries to include automotive, professional services, healthcare and transportation.

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