Here’s another puzzle for employers. Your employee tests positive for marijuana (cannabis) in your latest random drug screen. But marijuana is now legal in your state, and the drug test results may only reflect the fact that the employee used it yesterday at home. What should you do?
“Medical marijuana” can be purchased legally in 23 states with a physician’s prescription. In four of these states (Alaska, Colorado, Oregon, and Washington), you can also buy it for recreational use. Despite the difficulties of measuring and managing dosage with cannabis, the actual psychoactive drug in marijuana, up to 20 states will be considering some form of legalization in November 2016.
Many employers use drug testing in the workplace, especially for job roles that involve risky tasks like driving or serving vulnerable adults. Cannabis poses special problems because the “high lipid-solubility of cannabinoids” allows them to persist in the body for long periods, even up to months. Where consumption is legal, discipline or exclusion of an employee who tests positive may be increasingly problematic.
The More Things Change, the More they Stay the Same: Yes, You Can Still Maintain a Drug Free Workplace
In general, employers have the right to maintain a drug free workplace. The dangers associated with drug use are well known. However, legalization of cannabis may create some ambiguity. Under some circumstances in states where cannabis is legal, an employee may have the right to use the drug. An employer’s knowledge of this use might not, by itself, be a basis for adverse action.
There are a couple clear cases. If your employee has a prescription for cannabis from his or her doctor, you cannot discriminate against him or her. But what does that really mean? It has been established that employers do have a right and responsibility to take action against individuals who are impaired while on the job.
To add another wrinkle: an organization that receives federal funding or is regulated under federal authority, must treat marijuana as a prohibited substance under the Drug-Free Workplace Act. This has led to more than one confusing situation where state and federal laws contradict each other, but the federal law might serve as defense of testing for drugs and excluding on that basis.
How to Use Drug Screening
Your drug testing policy should be sensitive to the legal requirements in your location. Since the law is sometimes in flux, and varies across jurisdictions, review your policy along with a qualified attorney to make sure you are operating in compliance. Some things to consider include:
- Make sure your drug testing policy is up to date based on your attorney’s review.
- Then, train your employees. Setting expectations can shape behavior, nipping some problems in the bud.
- Charge your HR team and managers to know and understand the drug testing program and how to respond to positive tests.
- Continue drug testing as appropriate.
This rapidly changing playing field means you will have to review and revise your drug testing policy whenever local laws change. As an employer, you have a legal and ethical responsibility to keep a safe workplace. As always, monitoring risk mitigation practices like these is a worthwhile task.