Let’s Talk About Weed, Should employers within states where recreational marijuana use is legal still drug test their employees?

By Gary G.
Posted On 2/27/19

Talk about a loaded conversation! When it comes to marijuana in the workplace I think we all scratch our heads a bit. HR departments have their work cut out for them crafting drug screening policies, especially in states where marijuana is legal for recreational use.

While I am not an attorney, and this is simply my point of view, I always recommend readers to consult a qualified legal expert when making decisions.

So, marijuana is legal for recreational purposes in 10 states plus DC (AL, CA, CO, DC, MA. ME, MI, NV, OR, VT, WA), but there are still interpretive differences on buying, growing and using that differ from state to state. Here is a site that can explain the nuances. Remember, marijuana is still illegal at the Federal Level, and states have the right to decide, for now, how they enact legalization within their own borders. There are several legislative moves being made at the federal level and within different states for legalization at the Federal level, but that is probably many years away if it happens at all.

Also, marijuana for medicinal purposes is legal in 33 states plus DC, with a medical marijuana card. This opens up another can of worms, but for now I will limit the discussion to those 10 states, plus DC, who have legalized Marijuana for recreational use.

So, what does legalization of marijuana for recreational use mean in the workplace? Can you still be drug tested? How is this fair considering alcohol is also legal, yet the overwhelming majority of us are never tested for it? Some professions, like medicine for example, will screen for alcohol, but it is not the norm in the workplace. The answer is YES, you can be screened by any employer in any legalized state according to their workplace drug screening policies. Moreover, companies with offices and employees in legal states, but where their  corporate headquarters is not in a legal state (NY as an example), will most likely follow the policy of the corporate headquarters. A merger or acquisition could, in theory, change the marijuana policy, and an employee’s situation overnight.

The employee argument, and it is a valid one, is what I do in my personal time is my business and by forcing a drug screen, the company is infringing on my personal rights. I can drink alcohol until I pass out, as long as I don’t do it  or are under the influence at work . If I’m not high or getting high at work, why should my employer care what I do in the confines of my home, on my own time. It’s a good argument, and one we are going to hear more of in the coming years. There is one obstacle though…. keep reading.

The employer side of things is not so simple and here is where the head scratching starts for them. Think about it, unlike alcohol, aside from the potential of visual suspicion, there is no way to test for impairment. You can have THC in your blood, urine or hair follicles, but there is no reliable test that shows if you smoked a joint last night or vaped in the bathroom at work that morning. With a drug screen, both results would test positive, even if you are a responsible user of marijuana. Also, in sensitive positions (pilot, heavy machinery, nursing etc) drug screening will most likely always be mandatory given the risk of injury or death to the employee or others. This the conundrum for employers, and for many potentially answers “YES” to the question should they do it at all?

What makes this even more interesting is that recreational users of marijuana, as reported in a recent Yahoo survey, make up about 52 Million Americans or about 14% of the US population(at working age 18+). 86% of American are not regular users. This is not a majority of workers out there. That means less than 2 employees on a team of 10 would be affected by any policy a company could put forward. Some might argue that the whole debate is useless since it only affects a small population of a company. Well.. not so fast.

Drug screening is in a decline down to roughly 66% of all employers still screening. That number is dropping steadily and looks like it will continue to decline for non-sensitive positions. In addition it is likely that more states will legalize recreational marijuana over the next decade and extrapolating a bit, regular use will probably climb as well, putting more employees in the regular user group. In fact as this chart shows the sales for recreational marijuana are set to top $10B in 2025. In 2016 that number was less than $2B. That’s a lot of grass, and we can only assume that it is going to spill into this workplace dilemma at equal pace.

So, what do companies and employees do. Unless you are in Maine where workplace discrimination with respect to marijuana is clear, there is no immediate answer. For employees you have to expect that the majority of employers are going to screen you, and you need to make some decisions about how you will manage your personal and professional life to comply. For current employees, most states will not back you legally if random drug testing is part of your company’s policy, and you were informed about the policy (medical marijuana exceptions with varying rules state by state). Is this discriminatory? As of now it is not, yet it may become so down the road once legal precedent and or legislation play a bigger role. We have entered the gray area. You can either decide not to work for companies that test or discontinue being a “regular” user of marijuana. If I had to take guess, this will reach the courts in larger case numbers in the next 5-10 years and something is going to shake loose to make this easier for all of us. Until then employees need to do their research or assume that drug testing will be part of the employment process, at least for a while.

For employers this is much harder. Staffing shortages are definitely impacting drug screening policies as companies struggle to find suitable talent to fill vacancies. This is probably the biggest factor driving the decrease in employment drug screening. The other thing that employers need to look at is the spirit of their drug screening policies. How does this policy really affect your company and is it worth dropping marijuana from the testing all together? There are some industries (see the examples above) that will most probably always require a zero-tolerance policy.  Above all, employers need to clarify and document their policies in an Employee Handbook. The Drug Testing policy needs to be detailed with respect to on site/off site use, being under the influence or reasonable suspicion thereof, as well as medical marijuana use. Also, if you have “sensitive positions” at the workplace, it should be clear which positions are under this umbrella. The conditions for discipline (and what the disciplinary measure are) or termination, must be extremely clear.

For small companies, which make up the majority of businesses in the US, hire an HR expert or employment attorney to put these policies in writing. Do this sooner than later, be clear with your employees and make a decision as to what side of this your company stands.

As always we would love to hear about your experiences and/or opinions. We will continue to follow this topic for the years to come and as always welcome healthy debate.

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