Voters in another four states, Arizona, Montana, New Jersey, and South Dakota, opted for legalization of marijuana in the recent election. And the trend is likely to continue in other states, such as New York, which has seen efforts to legalize marijuana over the course of several years.
Currently, 15 states and the District of Columbia have legalized recreational marijuana: Alaska, Arizona, California, Colorado, District of Columbia, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, and Washington. These and another 20 states have legalized medical marijuana: Arkansas, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maryland, Minnesota, Mississippi, Missouri, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, and West Virginia.
Given this patchwork of laws, what options do multistate employers have to enforce their drug policies?
The main (but not exclusive) options for drug testing in light of marijuana legalization are (1) to maintain a strict drug-free workplace and zero-tolerance policy, even for off-duty use of marijuana (with possible accommodation for protected medical use, where required by applicable law), (2) to loosen restrictions and only discipline for clear impairment on the job, or (3) to cease testing for marijuana altogether.
Technically, marijuana is still illegal at the federal level, so, in general, most employers can continue to maintain drug-free workplaces and enforce zero-tolerance policies. Employers should be familiar, however, with their respective state and local laws because many protect medical marijuana users against employment discrimination, and some even extend such protection to employees engaging legal off-duty conduct, which could include recreational marijuana use, depending on location.
Ultimately, the best option for properly addressing the impact of legal marijuana on drug testing depends on each organization’s specific circumstances, including their industry and workplace details. For example, companies that employ CDL drivers to operate commercial motor vehicles on public roads are subject to federal alcohol and drug testing laws. And even where not legally required, many employers elect to implement drug testing as a way to ensure worker safety and productivity while reducing the risk of workers’ compensation and other claims. Conversely, some organizations may determine that legal consumption of marijuana neither poses a safety threat in certain positions nor results in any appreciable decrease in productivity.
Employers should consult legal counsel to review their unique situations and to create comprehensive and compliant drug policies.
This blog article is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.