How Marijuana Legislation Will Affect Drug Testing In The Workplace

Guest post written by Zeynep Ilgaz

Cofounder of Confirm BioSciences and president of  TestCountry. Confirm offers new, service-oriented drug-testing technology.

Can you fire an employee for testing positive for marijuana?

That question becomes more difficult to answer with every passing election. So far, 23 U.S. states have legalized medical marijuana, with Colorado and Washington voting to legalize recreational marijuana as well.
Many employers — especially those operating in states with these new laws — have questioned how these changes will affect their workplace drug testing policies and whether it’s still possible to promote and maintain a drug-free workplace.
Sorting through the changing laws can be confusing at times, but it’s really not as complicated as it seems. All you need is a fundamental awareness of the important facts and stats that should inform your company’s drug policy.

Key Facts to Know
The legalization of pot has definitely complicated things for employers. Laws and regulations vary from state to state, but here are several basics that are important to know:

• According to SAPAA, there were 13.1 million employed drug abusers in the U.S. in 2007, with food and construction industries leading the way. What’s more, drug and alcohol problems cost the U.S. an estimated $276 billion every year.

• Drug abusers are more likely to become sick or injured, are less productive, can be more distracting to co-workers, have increased absenteeism, and can be a danger to themselves or others. Maintaining a drug-free workplace is important for the safety, health, and productivity of all employees.

• Nearly half of the states and D.C. have approved medical marijuana use, so employers cannot discriminate against employees who test positive for marijuana when it’s prescribed by a physician. However, employers in many states are still allowed to reprimand employees who are impaired on the job due to drug use.

• Marijuana use is still illegal under federal laws. Therefore, any workplace that receives federal funding or is subject to federal regulations requiring the testing of safety-sensitive workers — like the Department of Transportation, for example — must consider marijuana a prohibited substance according to the Drug-Free Workplace Act of 1988.

• Increased marijuana use, especially in states where it’s legalized, can lead to more dangers on the road. Research done by Columbia University revealed that marijuana alone increased the likelihood of being involved in a fatal crash by 80 percent, so employees involved in road travel should be regularly monitored and tested.

Adjust to the New Standard
Given all the new legislation, employers must find ways to be compliant with state and federal laws while maintaining a safe workplace. But before you start crafting or altering your workplace drug testing policy, you should:

 1.      Talk with an attorney. A qualified attorney will be able to crosscheck your company’s drug testing policy against state and federal laws to ensure it’s compliant on all levels. He or she will also be able to answer any questions regarding the intricacies of your state’s marijuana laws.

 2.      Review your company’s drug testing policy. Carefully look through your drug testing policy, especially the section that addresses marijuana use. Make changes to clarify what you expect from your employees in terms of impairment, safety, marijuana use, and termination. Once again, your attorney should review any changes before the policy is distributed.

 3.      Communicate expectations with employees. Speak directly to your employees about the company’s standards and expectations on drug use and testing, and address any changes that were made to the written policy. Emphasize the importance of maintaining a drug-free workplace for everyone’s safety, health, and productivity.

 4.      Train HR and managers on changes. Your HR personnel and managers should be trained and educated on new policies, how to handle failed drug tests, and what to do about any employees who use medically prescribed marijuana. Remind them about the importance of confidentiality of all health records and testing results.

 5.      Continue or increase drug testing. With drug use and abuse on the rise, employers who strive to preserve a drug-free environment may simply want to increase workplace drug testing. Even if you don’t increase the frequency of testing, don’t let your testing policy go slack because of changing laws. 

Employers in every state should anticipate marijuana use and legalization becoming become more and more prevalent. Although complying with these new standards can feel overwhelming, it’s important to keep a level head. For now, stay informed about these new laws and update or adjust your workplace drug testing policy accordingly to keep your workplace safe, productive, and drug-free.

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