These days, when your applicant or employee tests positive for marijuana, your next step is not nearly as clear as it used to be. In fact, it may come as no surprise to you that the most common question we get now that more and more states are legalizing marijuana is, “How do we handle positive results for marijuana?”
How you respond to a positive result is a tricky issue that will depend on many factors, including the state laws that apply to your organization. Well over half of the states in the U.S. have legalized marijuana for medical use. In addition, about nineteen (19) states have made it legal to use recreationally. All of these laws differ on how employers must handle marijuana in the workplace. To further complicate the issue, federal law still makes marijuana illegal.
Sounds like a bunch of problems with no solution, right? Not exactly. We have been thinking this through and continue to follow the topic as it develops. Here are some options on how an employer might handle this issue:
One option is to consider taking marijuana out of your pre-employment drug panel. These individuals have not yet worked for your organization so all use will be off duty and it may be illegal to base a hiring decision upon the test result. State laws that have legalized marijuana make the handling of positive tests complex -- and those laws are constantly changing. Some states prohibit you from testing at all at this stage. Others will not allow you to deny employment for a positive test. Lastly, use is becoming more common with legalization which is increasing the rate of positive tests in a labor market where employers are already struggling to find employees.
Testing based on reasonable suspicion will require that you have trained supervisors able to recognize when an employee is under the influence. When testing for suspicion of marijuana, the goal is to show impairment at work. Relying on a drug test alone won’t show impairment because marijuana stays in the blood for 30+ days, long after the effects have worn off. Drug testing is therefore of limited value. Employers should be relying more on observations of impairment (which should then be documented), rather than testing, before any disciplinary step is taken. Without that observation of impairment, such action may be illegal. However, it’s important to note that certain states, like New York, prohibit the employer from testing for marijuana at all. Other states, like New Jersey, require the observations come from a certified recognition expert before testing is done. If you do not work in a state which requires certified recognition training, it is still recommended to train managers on reasonable suspicion drug testing.
Post-accident drug testing presents the same challenge. It is likely to capture off duty use and, depending on the applicable state law, it may be illegal for the employer to take an adverse action against the employee based on off-duty use of marijuana. In states where you can test for the drug, consider requiring that post-accident testing is not done unless you have reasonable suspicion of impairment while at work. Otherwise, consider taking it out the panel at this stage.
Random testing presents the same challenge of capturing off duty use. Some employers are taking it out of their panel for that reason.
Some employers are taking marijuana out of their drug panel all together, especially if they are a multi-state employer. Sounds crazy, right? Well, maybe not. No law requires you to test for marijuana unless you are regulated by the Department of Transportation (DOT). As more states legalize marijuana, usage is becoming more common. Meanwhile, the labor market continues to be tight. In addition, the complexity of the laws is becoming a bit too much for some employers to manage. Given the number of drugs on the market, drug panels cannot capture them all. Employers have to weigh which drugs to include and which ones to drop, taking into account all of these considerations, including workplace safety. In sum, employers have to balance safety against all of the complex protections being given to marijuana users in today’s workforce.
Call us if you are an employer with more questions about how to handle marijuana in the workplace, if you need help with your drug and alcohol policy, or if would like us to provide reasonable suspicion drug and alcohol training.