Testing Employees for Marijuana – Decision Time

Joe Reilly, President, National Drug Screening, Inc.Joe Reilly, President, National Drug Screening, Inc.

Testing Employees for Marijuana – Decision Time – Joe Reilly, President of National Drug Screening, Inc.

Many employers are talking about marijuana these days: should we test for marijuana, should we even do drug testing at all? As these are important questions for all employers to consider, the leaders of companies must make decisions on the topic of marijuana in the workplace.

Currently (May 2022), medical marijuana is authorized in thirty-seven states, the District of Columbia, and four territories. Eighteen states, the District of Columbia, and two territories have laws allowing recreational marijuana. The Federal Government still prohibits use of marijuana as a Schedule I drug.

Just to be clear, employers regulated by the United States Department of Transportation (DOT) are required to prohibit marijuana in and outside of the workplace and continue to conduct marijuana testing. Employees of these companies are removed from their safety-sensitive positions as a result of a positive test for marijuana regardless of whether they are using medical, recreational, or even cannabidiol (CBD) products containing tetrahydrocannabinol (THC).

Where the confusion comes in is regarding state laws and marijuana in the workplace—no two state laws on marijuana are alike. A handful of states actually have laws that require no adverse action against an applicant or employee solely based on a positive test for marijuana. This relates to the theory that an employer should not be able to deny employment or discipline an employee for off-duty use of marijuana if such use is legal under state law.

Adding to the confusion there is currently no testing available to determine that an individual might be impaired from marijuana use at the time of testing. Such technology would enable employers to take action against employees who have used marijuana during or just before work hours. Impairment at work would be proven. There are no state laws that require an employer to allow marijuana possession, use, or employees being under the influence of marijuana while on duty.

With a very tight labor market, companies are scrambling for workers. Some companies, but not the overwhelming majority, have stopped testing for marijuana. In 2021, made news by announcing that it would stop testing non-safety-sensitive employees for marijuana. A handful of other national companies have made the same decision but have not advertised it. Tom Fulmer, Vice President of National Drug Screening, Inc. (NDS) states: “At NDS with over five thousand employer clients throughout the United States, we have only seen about 3 percent do away with testing for marijuana. We actually see a greater influx of companies starting drug testing programs, more now than five years ago.” Quest Diagnostics, a major national drug testing laboratory, recently reported that in the past five years, positive tests for marijuana in the general US workforce increased 50 percent (2.6 percent in 2017 versus 3.9 percent in 2021; see Quest Diagnostics article Workforce Workforce Drug Test Positivity Climbs to Highest Level in Two Decades).

Business leaders have a responsibility to make clear their policies on illicit drug use and to clarify their positions on medical and recreational marijuana. Many companies need to draft and implement drug-free workplace policies, and many companies need to update their existing policies. Decisions have to be made. Will there be an accommodation for a medical marijuana user? Will the company eliminate testing for marijuana? Will the company continue to test for marijuana but not take any adverse action solely on positive test results? Tom Fulmer added: “We are not seeing a lot of companies addressing marijuana in their workplaces. We are available to assist with these policies but are not getting a lot of inquiries.”

Companies that are updating or drafting new drug-free workplace policies can take advantage of several resources from NDS. The Marijuana in the Workplace section of the NDS website is very comprehensive and interactive for an employer to work through a smart policy whether operating in one state or multiple states. This is a great resource created by Dee Mason from Ohio’s drug-free workplace consulting firm Working Partners. Dee has over twenty-eight years’ experience as a pioneer in the drug-free workplace field and is recognized as one of the most knowledgeable drug-free workplace program consultants in the nation. The Marijuana in the Workplace pages of the NDS website have three sections to help employers make decisions on policies regarding marijuana:

1. State by State Guide to Workplace Marijuana Laws
2. Workplace Considerations for Marijuana Use
3. Checklist of Impacting Issues for Employee Use of Marijuana

The issues of marijuana and employment drug testing will continue to be complicated. A business organization must be proactive by assigning an individual or committee to research, ask questions, and propose solutions. Collaboration with legal counsel is highly recommended. Human resources (HR) professionals should start the marijuana conversations sooner rather than later.
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