With approximately 20 states and the District of Columbia legalizing the use of medical marijuana, drug testing has become a particularly hot topic for employers. Many of them are confused about what legalization means and what impact it has on them. That may be especially true in Washington, Colorado and as yet to be determined states where recreational marijuana use is now legal or may be legalized in the future.
Rich DeMatteo recently interviewed David Bell from USA Mobile Drug Testing, explaining it from an employee perspective, so we thought it would be a good idea to cover it from an employer’s perspective.
The reality is that the legalization of marijuana doesn’t necessarily affect employers much. Companies still have the right to mandate and enforce their own policies concerning drug use by employees whether they are on the clock or not. If an employer deems that marijuana use, even for medical purposes, is contrary to the safety and productivity of their operation, then they are perfectly within their rights to test employees for marijuana use and to take corrective action if someone fails that test.
It’s important to keep in mind that marijuana use is still illegal at the federal level. This is partially what provides employers with this kind of latitude. However, even if the federal government declared that all use of marijuana was legal, it’s likely that employers would still be empowered to restrict or prevent use of the drug if such use might endanger workers.
While employers can carry on with business as usual, this is nonetheless a good opportunity to review existing drug policies. Even more importantly, this is the perfect time to implement a workplace drug policy if there isn’t one. It’s only with a thorough, effective, written drug policy that an organization can defend their right to maintain a drug free workplace. Otherwise, an employee might have extremely good standing for saying that they didn’t know their use of medical marijuana interfered with the conditions of their employment. Without a written policy a court might agree with them.
Drafting a workplace drug policy isn’t easy. Most organizations work with a legal advisor to make certain that the policy is within the limits of the law and non-discriminatory. These policies can be exceptionally detailed, specifying which substances employees are forbidden from using. They may also mandate when and how drug testing will occur and the consequences of failing a drug test.
Once the policy has been written, then all employees must be informed about it. It is helpful to email a copy of the policy to all personnel, but it’s important to follow that up with a meeting in which the main points will be highlighted. Many organizations have found it helpful to ask employees to sign a document testifying to their receipt and understanding of the company’s drug policy.
With a policy in place it’s now up to the organization to enforce it. Frequently, the best way to do this is with drug testing. Organizations can be creative about when to drug test employees as long as they do so impartially and in accordance with their written policy. For instance, a company might decide to drug test all new employees and then perform random tests on a monthly basis. The list of employees is generated by a computer program each month so no one is unfairly singled out. Companies may also test when they have a reasonable suspicion that an employee is using drugs or as a component of following up with an employee with known substance abuse issues.
Employers are within their rights to test for marijuana use even if it is legal in their state. They have a responsibility to maintain a safe workplace. Thus, marijuana use can be grounds for corrective action or dismissal.