Sunday, May 8, 2016

Marijuana, Employers, and Drug Testing ~ What You Need to Know

Created by Kimberly Kline

Many states have already passed, or are in the process of passing, laws governing the use of marijuana.  Some states are now allowing the use of marijuana for medical purposes.  Others have passed legislation permitting it recreationally.

There are still other states who have not yet dealt with the issue at all.

No matter what the case in your state, as an employer, it is wise for you to be proactive and develop a marijuana use policy for your company.

In Part 1 of this series, I will discuss changing state marijuana laws and the possible affect on your work environment and drug testing policies.  In Part 2, you will learn how to deal with these laws before you hire, by taking a look at your employment background check programs. 

Employers are understandably concerned.  You question how the existing or potential new marijuana laws will impact your company.  And, most importantly, you worry how you can still maintain and expect a drug-free work environment.

It can definitely seem confusing.  But it is not impossible.

Confused by Marijuana Laws? You can Still Have a Drug Free Workplace!  “Tweet This”

You can Still have a Safe and Drug-Free Workplace, despite new and emerging marijuana laws!

The key is to stay up to date on what is happening in your state concerning the use of marijuana both now and in the future.  And if you employ people in multiple states, then it is also imperative that you are on top of the laws in those states too.

These laws can govern both the use of marijuana for recreational use and the use of medically prescribed marijuana.


As an employer, it is your job to have a safe and productive workplace, both for your company’s success and for the welfare of your employees and customers.

For that reason it is important that your hiring and employee conduct policies address the issue of marijuana use.

It is first important to understand the possible drug tests used by employers and how marijuana presents in those tests.

4 Commonly Used Workplace Drug Tests:

Urine Test (Most Common)
Marijuana can be detected even days after use.  
Limitation: It does not show whether the subject was under the influence at the time of testing.

Hair Follicle Test
Can detect marijuana for weeks or even months after use. 
Limitation:  Does not detect marijuana use until days later. 

Blood Test
Best indication of whether the subject is currently under the influence.
Limitation:  Test is expensive and considered invasive.  Must be done immediately upon suspicion of use due to rapid decrease of levels over time.

Saliva Test
Able to show current use, even if only used for a day or two 
Limitation:  Unknown, Not Yet Widely Used

Some employers use random, unannounced, drug testing in their workplace.  Others only drug test for cause (observation of unsafe behavior).  Random drug testing poses the most problems when it comes to marijuana use.

Unlike some other drugs, alcohol for example, marijuana can stay in your system for 30 days or more.  This is dependent upon how recently a person smoked, how often they smoke, and their own metabolism.

Because of this, an employee could fail a drug test despite not having used marijuana for days or even weeks. 

Proponents of marijuana argue that use out of the workplace is not a threat to company safety or ability to perform on the job. However, opponents believe that the affects are there even days after use.  This is especially apparent in frequent and chronic users (something that is a problem with any drug, even alcohol).

For this reason, no matter the marijuana laws in your state, it makes sense for you to address the use of marijuana in your workplace. And if you currently drug test, then it is not wise to throw in the towel and abandon your program completely.

Sound drug policies are shown to increase workplace safety and productivity.  They also reduce absenteeism and can even deter drug use.

It is important to recognize that the goal of any good drug policy is truly not to dictate what an employee does on their own time, but to make sure that their actions do not create a problem in the workplace.

“Employee drug abuse can have serious implications on your entire company.  When an employee is on drugs, they are often incapable of making sound decisions, on top of often being physically impaired.  This can result in more on-the-job accidents and injuries, both for the employee using drugs and those around them.  This can cost you both in harming your workforce and being dangerous to you financially.”

(excerpt from my article, “Dangers to Your Small Business ~ Violence and Drugs in the Workplace”) 

Therefore, it is crucial that you understand your Rights as an Employer when it comes to drug testing and the consequences your employee could face for discovered marijuana use. 

Of the biggest concern is your ability, as an employer, to discipline, or even terminate, an employee who tests positive for marijuana.

In most states, employers are completely within their rights to prohibit marijuana use or impairment due to marijuana in the workplace. 

Created by Kimberly Kline

But what about marijuana use outside the workplace?

Many employers believe that laws addressing the use of medical marijuana are the most problematic.  They question what that means for their “zero tolerance” policy, especially if an effected employee fails a drug test.

Some states, Arizona for example, currently prohibit employers from firing an employee who tests positive for marijuana, if they have a medical marijuana card.  While other states permit it.

But while numerous states have legalized the use of medical marijuana, most have not included protections for those users from being disciplined through company drug policies.  Even the Americans with Disabilities Act (ADA) doesn’t protect employee use of medical marijuana.

This is especially true in jobs that are considered “safety sensitive” ~ transportation workers such as truckers, school bus drivers, and pilots, along with heavy equipment operators and government contractors.

However, the ADA and state regulations do require that employers provide “reasonable accommodation” for employees with a disability.  In some cases, that disability may include the off-work use of medical marijuana to manage symptoms or pain.

Because of this, more states may enact future laws to protect employees who use medically prescribed marijuana on their own time. Companies should be ready for potential revisions to their “zero tolerance” and drug testing policies as a result.

What is important to remember is the marijuana is still illegal under federal law.  This is especially important for any company that receives federal funding or is subject to federal regulations that make marijuana a prohibited substance.

When it comes to their drug policies, many employers choose to place their emphasis on federal law.  This means keeping their drug testing and workplace policies in place.

Once again, your best offense is a good defense.  This means creating an effective workplace drug policy that includes a drug-testing program.

Making sure your employees are not impaired at work, and a jeopardy to you company, should be your ultimate goal. And keeping up with any new and changing marijuana laws is key.

Be sure to check out Part 2 in this series where I discuss marijuana laws and what it means to your employee background check program!

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