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Use of Medical and Legal Recreational Marijuana and Employers

What are the best practices being used by employers taking into consideration the changing laws with legalization of recreational marijuana, specifically when you are hiring in various states? How do you maintain consistency across the board when dealing with pre-employment and workers comp drug screening? Additionally, how do you handle identifying when the use took place? Perhaps it was done recreationally while on vacation, time off or while traveling to a state where it (use of marijuana) was legal, as it may also apply with the use of medical marijuana. Thoughts, resources, suggestions are welcome.

Most employers are maintaining their current drug testing policies even with 28 states and the District of Columbia legalizing the medicinal use of marijuana (8 states and the District of Columbia have legalized recreational use of marijuana). However, there has been a noticeable trend of employers in states that have legalized the recreational use of marijuana removing the drug from pre-employment drug testing.

There is a common misunderstanding among applicants and employees that they’re protected from disciplinary action for using marijuana if they live or work in a state that has legalized it. This is not true. Employers are still permitted to prohibit the use of the drugs by prospective workers and employees. In fact, in some of the states that have legalized marijuana, the legislation specifically provides employers with the authority to enforce workplace policies restricting the use of marijuana. Ultimately, employers must decide whether the substance will be included in drug testing panels and prohibited from the workplace.

When there are multiple work locations in various states it can be difficult to maintain consistency with workplace policies since many states have adopted their own employment laws. Just like you would ensure you’re aware of the wage and hour laws in the applicable states, the same attentiveness must be given to marijuana laws. As previously mentioned, most of these states (if not all) provide specific exemption for workplace drug policies. Still, it’s important to know the details of the law.

Also, it’s worth considering the industry and type of work performed when deciding whether to test applicants and employees for marijuana. Obviously, jobs that are safety-sensitive like heavy machine operators and drivers should prohibit the use of marijuana; while banning the substance for stock clerks and store greeters may not be necessary. But, when drug testing based on positions or job types, it’s important to consider whether disparate treatment towards protected groups exists. Employers must decide whether a zero tolerance policy or one based on job classifications makes the most sense.

Further, employers must also consider the use of medicinal marijuana as an accommodation. Some of the states that have legalized the medical use of marijuana require employers to consider accommodating the applicant or user. Immediately rejecting an applicant or disciplining an employee for the sole reason of using marijuana for medical purposes is illegal in some states.

There is no way of determining when an individual actually used marijuana. Drug tests only show whether or not THC is present in the bloodstream. So, an individual who smokes marijuana legally while away from work on vacation, for example, can very well test positive for the substance upon returning to work a few days later.

Since drug testing and workplace conduct policies must be carefully worded, it may be worth the investment to create such policies with the guidance of a knowledgeable attorney, especially if you plan to limit drug testing to specified job classifications and/or if you have a workplace in a state that requires you to consider medicinal marijuana use as an accommodation. Also, supervisors/managers in states where the medicinal usage of marijuana is legal should be properly trained.

The increasing legalization of marijuana, scarcity of legal precedent and the need to attract and retain employees will continue to pose a challenge for employers.


This entry was posted on Wednesday, August 23rd, 2017 at 1:08 pm and is filed under
Human Resources Management.
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