At this writing, many states have legalized medical marijuana and some of those have also legalized it for recreational use. This has caused confusion for both employers and employees when it comes to drug testing in the workplace. It has also led to some companies rethinking their policies on cannabis.

A survey conducted by the Pew Research Center in October 2017 found 61 percent of Americans support legalizing cannabis. And while it remains illegal under federal law, the discrepancies between state and federal laws, as well as the growing acceptance of its use, have brought testing for marijuana into question.

It’s a complicated subject for both employees and employers, causing falsehoods and rumors to spread through workplaces as laws change. But the fact that marijuana can be used legally under state law does not always guarantee job protection for people who choose to exercise that right.

On the other hand, some states that have legalized medical marijuana, including Illinois, Arizona, and Delaware, have also passed laws that restrict employers from firing medical marijuana users unless they are actually impaired on the job. In those states a worker with a prescription for medical marijuana cannot be fired for off-duty use that does not affect his or her work performance. In some other states where medical marijuana is legal, off-duty use can still be grounds for firing.

Clearly the first step toward deciding whether or not your company should test workers for marijuana is to familiarize yourself with the laws regarding medical and recreational marijuana in every state in which you have employees.

 

Reasons for and Against Testing

A 2013 report by the U.S. Department of Health and Human Services concluded that illicit drug users are significantly more likely to skip work, change jobs frequently, and take time off for illness or injury than employees who don’t use drugs. Based on those conclusions, screening for substance abusers, especially as part of the hiring process, could boost a company’s productivity and retention rates. But in a tight job market, drug screening can make finding and keeping employees more challenging.

Unemployment in the U.S. is low, which is causing some employers to consider putting a halt to drug testing or at least dropping marijuana from the list of substances they screen for. Employers with zero-tolerance policies may find recruitment and retention of workers challenging in such a tight job market, especially in states where cannabis is legal. A potentially great employee who indulges occasionally in recreational marijuana or has a prescription card for marijuana simply won’t apply for a job at a zero-tolerance company if other, less stringent companies are hiring.

 

Testing Still Required for Some Jobs

Any workers in safety-sensitive jobs, such as those operating heavy machinery or workers requiring a commercial driver’s license, are still subject to drug testing under the U.S. Department of Transportation drug testing regulations. And the DOT is unwavering in its position prohibiting marijuana use of any kind, even by employees in states where medial and/or recreational pot is legal under state law.

In states where marijuana is legal, it is viewed like other legal substances CDL holders are tested for and not permitted to have in their systems while on the job, namely alcohol. The tricky thing about marijuana, however, is that it stays in the system much longer.

While blood alcohol content is a good indicator of both time of consumption and degree of impairment, the urinalysis used by the DOT to test for drugs can detect cannabis long after the user has stopped feeling the effects. If a person has several drinks on Saturday night, they will be completely sober by Monday morning because alcohol metabolizes fairly quickly in the system. Marijuana used on the weekend may well be detectible in the system days later. How long the effects of marijuana last can depend on many variables.

Determine if any of your employees are subject to drug testing under the DOT drug testing regulations. These employees are subject to drug or alcohol testing at various times including pre-employment, when there is reasonable suspicion or cause, following up after failing one drug test, randomly, returning to duty after a leave, or following an accident. Drug testing is also required if an employee is transferring from a nonsafety-sensitive job into one that is safety-sensitive.

For all other nonsafety-sensitive employees, decide if and when you are going to drug test and if you are going to include marijuana in that testing. Financially, there are pros and cons.

If you are going to make passing a drug test a requirement for hiring new employees, it’s important to know that you must legally offer them a job and have them sign a consent form before you can have them tested. The job offer is then contingent on them passing the drug test. You cannot use drug testing as a way to narrow a pool of applicants.

If you choose to do periodic or scheduled testing, be clear about which employees are subject to testing and be consistent. Picking and choosing who is tested can look like discrimination and get you in legal trouble.

 

Set Clear Standards

With laws on marijuana changing in many states, now is the time to create or update your company’s drug policy. If you drug test and you include marijuana in the substances you screen for, you need to determine the consequences for someone who tests positive. Is a positive test for cannabis dealt with less harshly than a positive test for other substances, or will you treat any positive results the same no matter what the substance? These are all crucial details that employees should be aware of. When it comes to drug testing, nobody likes surprises.

If you forgo testing of nonsafety-sensitive workers, that doesn’t mean you don’t need a drug and alcohol policy. Drug use or impairment on the job should be clearly forbidden and the consequences made known.

Before finalizing your company drug policy, make sure you are in compliance with federal and state laws. Then include all the details of your company’s drug policy in a written document and distribute it to employees and potential employees. Make it a part of the employee handbook if you have one. And be sure to keep an eye out for policy changes in your state when it comes to marijuana and update the language in your company drug policy when necessary.