August 8 Tip of the Week

“The Future of Drug Testing in the Workplace”

For many years, employers have engaged in pre-employment drug testing, as well as random and reasonable suspicion drug testing in the workplace.  The reason for these tests were to protect employees from unsafe working conditions and to weed out employees or prospective employees who engaged in illegal activities, such as smoking pot or using other illegal substances.  However, as the approach to marijuana use has changed over the years with many states decriminalizing marijuana and even legalizing the adult use of marijuana, the rules surrounding drug testing have changed and employers need to rethink their approach to this important issue. 

            The first push toward the legalization or use of marijuana was for medicinal purposes.  Thirty-nine states and the District of Columbia allow the use of medical marijuana to treat various medical conditions with a prescription.  From the introduction of medical marijuana, it was only a matter of time before states began to review the criminalization and illegal status of cannabis, marijuana, and THC.  To date, 18 states have legalized marijuana use for adults and more states have decriminalized the use and/or possession of marijuana reducing the penalties for individuals who violate the laws regarding marijuana use to fines and eliminating jail time as a penalty.  Some states who have legalized marijuana use have included restrictions on employers regarding the use of a positive drug test in employment decisions. 

            What does this new approach to marijuana mean for employers?  It means that it is necessary to reexamine and evaluate your current drug testing processes and procedures to ensure that they reflect this new culture.  The first step is to determine what you are trying to accomplish through drug testing and to determine whether there is another way to achieve the same goal.  Can a rigorous interview process and background check assist you in determining the viability of a candidate in lieu of the pre-employment drug test?  Is random drug testing really necessary or can you achieve the same goal through reasonable suspicion testing?  Does drug testing artificially restrict your candidate pool because recreational drug users, who could be good employees, self-select out of applying for your jobs? 

            Certainly, if you are a federal contractor subject to the Drug Free Workplace Act requirements or hire employees into safety sensitive positions where drug use of any kind presents an increased safety risk to employees and the general public, you will want to continue with your drug testing program.  Also, some states sponsor drug free workplace programs that allow employers to receive discounts on their workers’ compensation premiums.  These programs must meet certain requirements in each state but provide an excellent framework for employers who wish to continue to drug test their employees. 

            The bottom line when it comes to employee drug testing is that employers must determine the level and type of drug testing they wish to do, develop a justification for that testing and draft and implement comprehensive drug testing policies that comply with the law in their state.  Each policy should consider whether they will accommodate medical marijuana use and to what extent, how the drug tests will be performed including the measures that will be taken to protect an employee’s privacy rights, and provide an opportunity for an individual to challenge and/or appeal a positive drug test result. 

            Even in light of this new acceptance of marijuana, employers have the right to establish reasonable rules of conduct for their employees.  When examining your drug testing policies to reconsider how marijuana is treated under those policies, employers should draw an analogy between marijuana use and the use of alcohol.  Alcohol consumption is legal in all states, yet employers are able to set rules and expectations for their employees regarding the use of alcohol in the workplace.  Marijuana, while not as well understood in terms of its impact on an individual’s cognitive and physical functions, should be treated similarly to alcohol in terms of workplace rules and policies.  As this area of the law continues to evolve, myHRcounsel can assist you in developing drug testing and workplace conduct policies that protect you and your workforce and are legally compliant.  We can also assist you in addressing performance and accommodation  issues that may arise when an employee uses marijuana or is under the influence of marijuana at work.